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

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

15-35, 15-105, 15-119, AND 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 Court Of

Appeals For The Third Circuit

BRIEF OF AMICI CURIAE LAMBDA LEGAL

DEFENSE AND EDUCATION FUND, INC., ET AL..,

IN SUPPORT OF RESPONDENTS

CAMILLA B. TAYLOR JENNIFER C. PIZER

KYLE A. PALAZZOLO Counsel of Record

Lambda Legal Defense JON W. DAVIDSON

and Education Fund, Inc. Lambda Legal Defense and

105 W. Adams St. Education Fund, Inc.

Chicago, IL 60603 4221 Wilshire Blvd.

(312) 663-4413 Los Angeles, CA 90010

(213) 382-7600

HAYLEY GORENBERG jpizer@lambdalegal.org

OMAR GONZALEZ-PAGAN

AISHA N. DAVIS

Lambda Legal Defense

and Education Fund, Inc.

120 Wall St., 19 Floor

New York, NY 10005

(212) 809-8585

Counsel for Amici Curiae

(Additional Captions Listed on Inside Cover)

LEGAL PRINTERS LLC, Washington DC © 202-747-2400 « legalprinters.com

PRIESTS FOR LIFE, ET AL., Petitioners,

DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.,

Respondents.

ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON, ET AL.,

Petitioners,

Vv.

SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN

SERVICES, ET AL., Respondents.

EAST TEXAS BAPTIST UNIVERSITY, ET AL., Petitioners,

Vv.

SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN

SERVICES, ET AL., Respondents.

LITTLE SISTERS OF THE POOR HOME FOR THE AGED,

DENVER, COLORADO, ET AL., Petitioners,

Vv.

SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN

SERVICES, ET AL., Respondents.

SOUTHERN NAZARENE UNIVERSITY, ET AL., Petitioners,

Vv.

SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN

SERVICES, ET AL., Respondents.

GENEVA COLLEGE, Petitioner,

SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN

SERVICES, ET AL., Respondents.

TABLE OF CONTENTS

Page

, ° . 4 SER ecesseee i

A weiccccnistncstntscbicsenisinebenionsnn il

INTERESTS OF AMICI CURIAE....................cccc0c000008 1

SUMMARY OF THE ARGUMENT...................0.0...... 2

ST ITITTET cxnsisticerinsnnereicesnacieeinnnneniianariniendscmaininesiiniianaiininds 6

I. THE CONTRACEPTIVE COVERAGE

ACCOMMODATION FOR RELIGIOUS

NONPROFITS IMPOSES AT MOST AN

INCIDENTAL BURDEN ON THOSE

EMPLOYERS’ EXERCISE OF RELIGION,

AND NOT A SUBSTANTIAL BURDEN ......... 6

Il. DEEMING THE. ACCOMMODATION

INSUFFICIENT WOULD NEGATE

SOUND, SETTLED PRECEDENTS THAT

LIMIT EVERYONE'S RIGHT TO IMPOSE

RELIGIOUS VIEWS ON THIRD PARTIES

TO THEIR DETRIMENT.....................cssseeeeees 17

CONCLUSION................ ieniiateididadtasimienennnnianieaines 35

TABLE OF AUTHORITIES

Page

Cases

Berry v. Dep't of Social Servs.,

447 F.3d 642 (9th Cir. 2006) ................cccccccccsccseees 12

Bob Jones Univ. v. United States,

ELS ee eee Re re 20

Bodett v. Coxcom, Inc.,

366 F.3d 736 (9th Cir. 2004) ...................ccceeee 28, 29

Bollenbach v. Bd. of Educ.,

659 F Supp. 1450 (S.D.N.Y. 1987) ....................... 21

Bowen v. Roy,

I a 3, 16

Bruff v. North Miss. Health Servs., Inc.,

244 F.3d 495 (5th Cir. 2001) ......................000.. 12, 13

Burwell v. Hobby Lobby Stores, Inc.,

I TR asian passim

Catholic Charities of Sacramento v.

Superior Court (Sacramento),

RTT nr 14-15, 25

Dole v. Shenandoah Baptist Church,

899 F.2d 1389 (4th Cir. 1990) .........................c00000 10

Donovan v. Tony and Susan Alamo Found.,

722 F.2d 397 (8th Cir. 1983),

" . fy Gis |) ene 10, 16-17

EEOC v. Fremont Christian Sch..,

781 F.2d 1362 (9th Cir. 1986) ......................... 11, 21

Erdmann v. Tranquility, Inc.,

155 F Supp. 2d 1152 (N.D. Cal. 2001) ........... 28, 29

Estate of Thornton v. Caldor, Inc.,

I, I asta siaeaieilipctnmreeenibmmbstabidlatits 17

Glenn v. Brumby,

668 F.3a 1312 (Lith Cir. 3012) ............0020..02........ 22

Henderson v. Kennedy,

3 # tes | RE eneEnn 12-13

Hernandez v. Comm’,

REESE ARCA sense rae toNaewee 7

Hyman v. City of Louisville,

132 F. Supp. 2d 528 (W.D. Ky. 2001)

vacated on other grounds by

53 Fed. Appx. 740 (6th Cir. 2002)................... 28, 29

Jacobson v. Massachusetts,

IR ENE SIR a e acdcccrer aero 19

Jimmy Swaggart Ministries v.

Bd. of Equalization of Cal.,

TERS eR oe nee Re 12-13

Keeton v. Anderson- Wiley,

664 F.3d 865 (11th Cir. 2011) ........0000..0000. 1, 19

Knight v. Conn. Dep’t of Pub. Health,

275 F.3d 156 (2d Cir. 2001)...................000. 12, 28, 29

Lawrence v. Texas,

Ss 5, 29

Little Sisters of the Poor Home for the Aged v.

Burwell,

794 F.3d 1151 (10th Cir. 2015) ................cccccceeesceees 7

Loving v. Virginia,

I eure 21

Lyng v. Northwest Indian Cemetery Protective Ass'n,

ny ici cin intnicteniininieminniibaias 3, 16

Mahoney v. Doe,

8 es bi) TR ) aera 7

Moore v. Metro. Human Serv. Dist.,

Slip Copy, 2010 WL 3982312

fe ER eee enon a a 12

Newman v. Piggie Park Enters., Inc.,

256 F. Supp. 941 (D.S.C. 1966),

reu d 377 F.2d 433 (4th Cir. 1967),

affd and modified on other grounds,

I eel 20-21

North Coast Women’s Care Med. Grp., Inc. v.

San Diego Cty. Superior Court (Benitez),

189 P.3d 959 (Cal. 2008) ........................ 1, 19-20, 29

Obergefell v. Hodges,

ial 1, 22

People v. Handzik,

a , eanmuniedsanas 19

People v. Pierson,

I I i sceeelindaeiniomnaninn 19

Peterson v. Hewlett-Packard Co.,

358 F.3d 599 (9th Cir. 2004) ........................... 28, 29

Pickup v. Brown,

740 F.3d 1208 (9th Cir. 2014) ................222..eeeeeeeeee 14

Planned Parenthood of Se. Pa. v. Casey,

I ecient 5

Price Waterhouse v. Hopkins,

| ee 22

Priests for Life v. United States HHS,

cp ie 5) Ee Eereee 7

Prince v. Massachusetts,

I ll 19

Pruneyard Shopping Ctr. v. Robins,

TN Ne aE 14, 15

Reynolds v. United States,

EERE cma ERO CI 19

Rumsfeld v. Forum for Academic

and Institutional Rights, Inc.,

EN 3, 14, 15

San Jose Christian Coll. v. City of Morgan Hill,

360 F.3d 1024 (9th Cir. 2004) .........................0000000 )

Smith v. Fair Emp’t. and Hous. Comm'n,

913 P.2d 909 (Cal. 1996),

cert denied, 521 U.S. 1129 (1997)................ 9, 13, 22

Spratt v. Kent Cty.,

621 F Supp. 594 (W.D. Mich. 1985) ...........0.e0000-. 19

Swanner v. Anchorage Equal Rights Comm'n,

ee re ND Bi reccncrnctccescscsecaseseese 22

Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,

I a rlieieaiellaliote 7

United States v. Lee,

ee eB ID cnrtnctsincceneveisossentiionsss 3, 11, 17, 18

United States v. Windsor,

I celaeaion 22

Walden v. CDC & Prevention,

669 F.3d 1277 (11th Cir. 2012) ..........000.... 9,19

Whitney v. Greater N.Y. Corp. of

Seventh-Day Adventists,

401 F. Supp. 1363 (S.D.N.Y. 1975) ....................... 21

Winters v. Miller,

446 F.2d 65 (2d Cir. 1971),

cert. denied, 404 U.S. 985 (1971) .............cccceeeeeeeee 19

Statutes

Oe es te NTI ic iccccecincesiepsensseneneneneniion 2, 3, 16, 32

EE A ane passim

Other Authorities

Agency for Healthcare Research and Quality,

National Healthcare Disparities Report (2012),

http://archive.ahrq.gov/research/findings/nhqrd

EE TLE NS 31

Bogart, Laura M. et al., Perceived Discrimination

and Physical Health Among HIV-Positive Black

and Latino Men Who Have Sex With Men,

17[4] AIDS & Behavior 1431 (May 2013)............. 34

Brachear, Manya A., Agency takes over foster care

in Rockford, Chicago Tribune (June 16, 2011),

http://www.chicagotribune.com/news/local/brea

king/chibrknews-agency-replaces-catholic-

charities-in-rockford-for-foster-care-20110616-

story.htm] (last visited Feb. 15, 2016).................. 26

Catholic Charities of California, Inc.,

http://catholiccharitiesca.org/ (last visited Feb.

EEE RRESE EASA AEH Ae tee tir ees oe Oe ee aOR 26

Catholic Charities of Sacramento,

http://www.catholiccharitiessacramento.org/

GS ee 26

vil

Catholic Charities USA, About,

https://catholiccharitiesusa.org/about (last visited

PA SG SUED ceccccsensesscnitnseibisiininissintnibtinasimammanailininaita 24

Catholic Charities USA, Providing Disaster Relief,

https://catholiccharitiesusa.org/efforts/providing-

disaster-relief (last visited Feb. 12, 2016)............ 25

Catholic Charities USA, Sheltering Those in Need,

https://catholiccharitiesusa.org/efforts/sheltering-

those-in-need (last visited Feb. 12, 2016)............. 25

Catholic Charities USA, Supporting Healthy Lives,

https://catholiccharitiesusa.org/efforts/supporting-

healthy-lives (last visited Feb. 12, 2016) ............. 24

Catholic Charities USA, The Catholic Charities

Network, https://catholiccharitiesusa.org/network

hers ee 24

Centers for Disease Control and Prevention, HIV

Among African Americans,

http://www.cdc.gov/hiv/group/racialethnic/african

americans/ (last visited Feb. 12, 2016)................. 34

Cochran, Susan, et al., Cancer-Related Risk

Indicators and Preventive Screening Behaviors

Among Lesbians and Bisexual Women,

91 Am. J. Pub. Hith., No. 4, 592 (April 2001) ...... 34

Cruz, David B., Note, Piety and Prejudice: Free

Exercise Exemption from Laws Prohibiting

Sexual Orientation Discrimination,

69 N.Y.U. L. Rev. 1176 (1994)....................cc00000000. 35

Dep’t Health & Hum. Sves., Lesbian, Gay,

Bisexual, and Transgender Health (2010),

http://www.healthypeople.gov/2020/topics-

objectives/topic/lesbian-gay-bisexual-and-

i iciernienciiernicescianciitilinitebanuitteisteeican 31

vill

Forbes, The 50 Largest U.S. Charities, #15 Catholic

Charities USA, http://www.forbes.com/companies/

I air acice nascenanninnatons 23

Gay and Lesbian Medical Association, Healthy

People 2010 Companion Document for Lesbian,

Gay, Bisexual, and Transgender (LGBT) Health

(2001), http://glma.org/_data/n_0001/resources/

live/HealthyCompanion Doc3.pdf......................0+. 31

Inst. of Med., The Health of Lesbian, Gay, Bisexual,

and Transgender People: Building a Foundation

for Better Understanding (2011),

http://www.iom.edu/Reports/201 1/The-Health-of-

Lesbian-Gay-Bisexual-and-Transgender-

EN EL, SE 30-31

Kates, Jennifer, et al., Health and Access to Care

and Coverage for Lesbian, Gay, Bisexual, and

Transgender Individuals in the U.S., Henry K.

Kaiser Family Foundation Issue Brief (Oct.

2014), http://kff.org/report-section/health-

access-to-care-and-coverage-for-lesbian-gay-

bisexual-and-transgender-the-lgbt-community/

ee 33

Lambda Legal, Regarding Nondiscrimination in

Health Programs and Activities, (RIN 0945-AA02)

(Nov. 9, 2015),

http://www.lambdalegal.org/in-court/legal-

docs/hhs_dc_20151117_letter-re-1557 .................. 32

Lambda Legal, When Health Care Isn’t Caring:

Survey on Discrimination Against LGBT People

and People Living with HIV (2010),

http://data.lambdalegal.org/publications/

downloads/ whcic-report_when-health-

a snensinoaale 32, 33

Lick, David L., et al., Minority Stress and

Physical Health Among Sexual Minorities,

8 Perspectives on Psych. Science 521 (2013)... 33-34

Mays, Vickie & Susan Cochran, Mental Health

Correlates of Perceived Discrimination Among

Lesbian, Gay, and Bisexual Adults in the United

States, 19 Am. J. Pub. Health. 1869 (2001).......... 33

MergerWatch Project, Protecting Patients’ Rights

When Hospitals Merge,

http://www.mergerwatch.org (last visited Feb.

ES enna eo een 26-27

Meyer, Ilan, Prejudice, Social Stress, and Mental

Health in Lesbian, Gay, and Bisexual Populations:

Conceptual Issues and Research Evidence,

Psychological Bulletin, Vol. 129, No. 5 (2003)...... 33

NeJaime, Douglas & Reva B. Siegel, Conscience

Wars: Complicity-Based Conscience Claims in

Religion and Politics, 124 Yale L.J. 2516 (2015).. 34

Substance Abuse and Mental Health Svcs. Admin.,

Top Health Issues for LGBT Populations (2012)

http://store.samhsa.gov/product/Top-Health-

Issues-for-LGBT-Populations/SMA12-4684......... 31

United States Conference of Catholic Bishops,

Discrimination on the Basis Sex, RIN 1250-AA05

(Mar. 30, 2015),

http://www.usccb.org/about/general-

counsel/rulemaking/upload/Comments-

Discrimination-Basis-of-Sex-March-2015.pdf...... 23

United States Conference of Catholic Bishops,

Nondiscrimination in Health Programs and

Activities, RIN 0945-AA02 (Nov. 6, 2015),

http://www.usccb.org/about/general-

counsel/rulemaking/upload/Comments-

Proposal-HHS-Reg-Nondiscrimination-

Federally-Funded-Health.pdf......................... 16, 23

Uttley, Lois, et al., Miscarriage of Medicine: The

Growth of Catholic Hospitals and the Threat to

Reproductive Health Care (Dec. 18, 2013),

http://www.mergerwatch.org/storage/pdf-

files/Growth-of-Catholic-Hospitals-2013.pdf........ 27

INTERESTS OF AMICI CURIAE

Amict Curiae Lambda Legal Defense and

Education Fund, Inc., the Human Rights Campaign,

and the Transgender Law Center (together, “Amici”)

are among the nation’s leading nonprofit advocacy

organizations working to protect and advance the

civil rights of lesbian, gay, bisexual, and transgender

(“LGBT”) people and people living with HIV Amici

submit this brief in support of Respondents.’

Amici have participated as party counsel or

amicus curiae in many cases involving assertions

that statutes, rules, or policies regulating relation-

ships, employment, education, or professional

services infringed on religious freedom. See, e.g.,

Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Burwell

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

(“Hobby Lobby’); Keeton v. Anderson-Wiley, 664 F.3d

865 (11th Cir. 2011) (rejecting claim that counseling

student’s religious exercise and speech rights

warranted exemption from university's requirement

that she counsel lesbian and gay clients per usual

standards); North Coast Women’s Care Med. Grp.,

Inc. v. San Diego Cty. Superior Court (Benitez), 189

P.3d 959 (Cal. 2008) (“Benitez”) (rejecting claim that

nondiscrimination statute infringed physicians’

religious exercise and speech rights).

' All parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief. No person

other than Amici, their members, or their counsel made a

monetary contribution to its preparation or submission.

Amici serve constituencies that with disturbing

regularity suffer religiously based refusals of health

insurance, medical care, and other services in

various contexts. Based on this and on their prior

legal work, Amici have developed expertise

concerning the legal infirmities and harmful

implications of Petitioners’ claim that even the

multiple ways by which they may opt out of the

Affordable Care Act’s contraception coverage rule

are insufficient to accommodate their religious

needs. Amici submit this brief to provide fuller

explanation of the harmful consequences for their

constituencies and for society as a whole were the

Court to accept Petitioners’ proposed mutation of

religious free exercise doctrine. Amici urge the Court

instead to reaffirm core principles that have been

essential to maintaining religious coexistence,

secular public health programs, and _ equal

opportunity in our pluralistic nation.

SUMMARY OF THE ARGUMENT

In challenging the accommodation for employers

who object on religious grounds to providing the

contraceptive coverage guaranteed by the Patient

Protection and Affordable Care Act, 42 U.S.C. §

300gg-13(a)(4) (“ACA”), Petitioners aggressively

recast the reach of the Religious Freedom

Restoration Act, 42 U.S.C. § 2000bb, et seq.

(“RFRA”). RFRA _ does_ not. protect market

participants from incidental burdens on religious

exercise. Regardless of sincere religious motivation,

those who engage in market activity may be required

to comply with various rules that apply equally to

all; RFRA requires government to show that such

rules serve compelling interests in the least

restrictive manner only when they are shown to

impose a substantial burden on religious exercise.

The ACA’s contraceptive coverage benefit, as

modified by the accommodation, burdens the

Petitioners’ religious practices incidentally at most,

and not substantially. The accommodation respects

Petitioners’ objection to contraception, separates

them from contraceptive coverage, and makes that

separation explicit—just as in the analogous freedom

of expression context, see Rumsfeld v. Forum for

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

(2006) (“FAIR”}—while meeting the employees’

needs with services provided and paid for by

independent parties. It is “a system that seeks to

respect the religious liberty” of nonprofit employers

“while ensuring that the[ir] employees have

precisely the same access to all FDA-approved

contraceptives” as others do. Hobby Lobby, 134 S. Ct.

at 2759.

Petitioners’ objection to even the easy opt-out

offered to them so they can avoid providing

contraception coverage, if sustained, would impair

their employees’ access to that insurance. Because

the religious free exercise doctrine does not include a

right to insist that either the government or third

parties conform to one’s own beliefs and practices,

there is no legally cognizable burden on Petitioners’

religious rights, and the RFRA analysis can end on

this point. See Lyng v. Northwest Indian Cemetery

Protective Ass’n, 485 U.S. 439 (1988); Bowen v. Roy,

476 U.S. 693 (1986); United States v. Lee, 455 U.S.

252 (1982); see also Hobby Lobby, 134 S. Ct. at 2787

(Kennedy, J., concurring) (noting that “no person

may be restricted or demeaned by government in

exercising his or her religion. Yet neither may that

same exercise unduly restrict other persons, such as

employees, in protecting their own interests,

interests the law deems compelling.”).

Like the case law it codified, RFRA does not

make religion a trump card as against the needs of

government and third parties. Instead, the statute

requires courts to consider asserted religious

exercise needs in context with other interests. Here,

even if the Court were to find that the alternate

insurance process imposes a substantial burden on

Petitioners own exercise of _ religion, the

accommodation should be sustained because it

furthers the government’s compelling interest in

“ensuring that women receive the full and equal

benefits of preventative health coverage guaranteed

by the Affordable Care Act” without overbreadth.

Respondents’ Br., Case No. 14-1418, pp. 54-61, 72-

88.

While Amici agree with Respondents’ arguments

on these points, Amici provide this brief to assist the

Court with respect to a related consideration—

namely, the extensive precedent confirming that

religious liberty always finds a limit when it causes

harm to others. The relief Petitioners’ seek would

impede the ability of insurers and third party

administrators (“TPAs”) to provide access to basic

services that Congress has recognized are essential

both for public health and for gender equality.

Petitioners thus defy precedent when they seek to

extend their free exercise rights to the detriment of

the health, financial, and liberty rights of others.

That the care at issue concerns reproductive

health and family planning only magnifies the

potential consequences of Petitioners’ attempt to

inflate the scope of their religious rights. These

government-guaranteed health services affect the

“most intimate and personal choices a person may

make in a lifetime.” Planned Parenthood of Se. Pa. v.

Casey, 505 U.S. 833, 851 (1992); see also Lawrence v.

Texas, 539 U.S. 558, 578 (2003) (explaining that

Casey confirmed that decisions concerning intimate

adult relationships are a form of protected liberty for

both married and unmarried persons, and are

protected regardless of gender or sexual orientation).

If Petitioners were to prevail, it would invite

employers to make similar objections whenever their

employees need them to complete routine paperwork

or to take other incidental steps related to

government programs, benefits, or laws concerning

family or personal needs of which the employer

disapproves on religious grounds. While these cases

concern employer efforts to impede Congress’s

program to equalize health insurance costs and

coverage as between women and men, and to

improve public health, Petitioners’ expanded

conception of institutional religious freedom as a

right that is allowed to override others’ freedom also

could undermine other public benefit programs and

laws designed to improve health and to equalize

opportunity for, among others, LGBT persons and

those living with HIV The constituencies that Amici

serve already encounter discriminatory, religion-

based denials of medical care, as well as refusals to

recognize their legal familial relationships. Their

health and wellbeing require that these denials

become less frequent, not more so.

Courts consistently in the past have rejected

religious exercise claims that entail harm to others.

The Court should do so here as well. The health and

equality interests at stake are compellingly

important. And they are only the beginning of the

interests likely to be at risk if the Court negates the

reasonable limits that Congress wrote into RFRA.

ARGUMENT

I. THE CONTRACEPTIVE COVERAGE

ACCOMMODATION FOR RELIGIOUS

NONPROFITS IMPOSES AT MOST AN

INCIDENTAL BURDEN ON THOSE

EMPLOYERS’ EXERCISE OF RELIGION,

AND NOT A SUBSTANTIAL BURDEN.

Petitioners’ conception of what constitutes a

burden on religious exercise far exceeds what prior

case law has recognized. Under RFRA, the federal

government “shall not substantially burden a

person’s exercise of religion” unless that burden is

the least restrictive means to further a compelling

government interest. 42 U.S.C. §§ 2000bb-1(a), (b).

By its explicit terms, the statute offers protection

only against substantial burdens on religious

exercise, not against merely incidental burdens.

Consequently, notwithstanding sincere religious

beliefs, those who engage in regulated public

activities must comply with generally applicable

laws, and government need only show that a

challenged law is the least restrictive way to

advance a compelling state interest when that law

imposes a substantial burden on religious exercise.

Everyone in our society is free to identify with a

particular religious tradition and to hold whatever

beliefs inspire them; it is not for the courts to judge

the reasonableness or logic of their beliefs. Thomas

vu. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707,

714 (1981). Courts are charged, however, to assess as

a legal matter, based on the record presented,

whether a challenged law burdens a religious

practice substantially or only incidentally. See, e.g.,

Hernandez v. Comm’r, 490 U.S. 680, 699 (1989),

cited in Little Sisters of the Poor Home for the Aged v.

Burwell, 794 F.3d 1151, 1177 n.23 (10th Cir. 2015);

Priests for Life v. United States HHS, 772 F.3d 229,

247 (D.C. Cir. 2014); Mahoney v. Doe, 642 F.3d 1112,

1121 (D.C. Cir. 2011).

This must remain a legal question for courts or

else any individual or organization could require

that a law or rule undergo and survive strict

scrutiny review due to sincere but subjective feelings

of burden, even when the burden would be deemed

minuscule if assessed objectively. If courts were to

defer to RFRA claimants’ subjective assertion of

burden, that essentially would eliminate a key

aspect of legal review, and the burden assessment

would be subsumed into the separate determination

of the claimant’s sincerity. Congress’s requirement

that only “substantial” burdens on religious exercise

give rise to a RFRA claim should not be ignored or

leached of meaning. See Little Sisters, 794 F.3d at

1177 (citing 139 CONG. REC. S14352 (daily ed. Oct.

26, 1993), statement of Sen. Kennedy noting that

RFRA would not impose strict scrutiny for

“governmental actions that have an incidental effect

on religious institutions’).

The Court considered very similar objections to

contraception in Burwell v. Hobby Lobby and

concluded that the employers’ religious needs could

be accommodated using the opt-out process at issue

here. Specifically, like Petitioners here, the Hobby

Lobby plaintiffs held the religious belief that they

may not “be involved in the termination of human

life’ after conception, which they believe is a ‘sin

against God to which they’ are _. held

accountable.” 134 S. Ct. at 2765 (emphasis added).

Like Petitioners here, they also averred that “it is

immoral and sinful for [them] to intention-

ally participate in, pay for, facilitate, or otherwise

support these drugs.” Id. (emphasis added).

The Court accepted that those beliefs were

sincerely held and found that “arrang[ing] for such

coverage . demands that they engage in conduct

that seriously violates their religious beliefs.” Id. at

2775. Importantly, however, the Court determined

that “arranging” did not include the minimal

paperwork the government uses to implement the

accommodation. And both the majority opinion and

the concurrence concluded that the accommodation

would respect the Hobby Lobby plaintiffs’ religious

beliefs, which closely resemble Petitioners’ stated

beliefs in these cases: that they may not directly

provide insurance, nor “be involved in. participate

in, pay for, facilitate, or otherwise support” the

challenged medications. Jd. at 2765.

The majority opinion concluded that, “The less

restrictive approach we describe accommodates the

religious beliefs asserted in these cases,” id. at 2783

n.40 (emphasis added), and “does not impinge on the

plaintiffs’ religious belief that providing insurance

coverage for the contraceptives at issue here violates

their religion. .” Id. at 2782. The concurrence

agreed that the “accommodation equally furthers the

Government’s interest but does not impinge on the

plaintiffs’ religious beliefs” and “the means to

reconcile those two priorities are at hand in the

existing accommodationthe Government has

designed, identified, and used for circumstances

closely parallel to those presented here,” id. at 2786-

87 (Kennedy, J., concurring) (emphasis added)—

referring to the very accommodation Petitioners

complain of in the instant cases.

In addition to being consistent with most of the

circuit decisions below, this conclusion also is

consistent with numerous prior cases addressing

religious liberty claims that examined the extent of

the burden claimed to be imposed by government

regulations and rejected claims that having to take

steps to obtain a religious accommodation itself

creates a substantial burden. For example, in a case

applying RFRA’s strict scrutiny test, a religious

school’s complaint about having to complete

paperwork to request a zoning variance was rejected

as not imposing a substantial burden on its religious

exercise. San Jose Christian Coll. v. City of Morgan

Hill, 360 F.3d 1024 (9th Cir. 2004). Likewise, in

Walden v. CDC & Prevention, 669 F.3d 1277, 1292

(11th Cir. 2012), the Eleventh Circuit applied RFRA

and determined that there was no burden at all on

plaintiff counselor's religious beliefs in being

removed from an employee assistance contract for

telling patients she was referring them elsewhere

due to her religious objections to their relationships,

because she claimed no religious duty to tell patients

the reasons for those referrals. Accord Smith v. Fair

Emp't and Hous. Comm'n, 913 P.2d 909 (Cal. 1996),

cert. denied, 521 U.S. 1129 (1997) (under strict

scrutiny, burden of fair housing law on landlord

with religious objection to unmarried tenants was

not substantial because landlord had chosen to enter

the rental market and was best positioned to avoid

the conflict).

Similarly, in Donovan v. Tony and Susan Alamo

Found., 722 F.2d 397, 403 (8th Cir. 1983), affd 471

U.S. 290 (1985), the court rejected as “clearly

without merit” a religious exercise defense to

compliance with wage and hour regulations that had

been asserted by a religious non-profit that employed

formerly incarcerated people and individuals dealing

with substance abuse as a way of furthering their

rehabilitation. Recognizing that a line must be

drawn between direct and incidental burdens on

religious exercise, the court concluded that ensuring

fair compensation and working conditions of

employees engaged in secular work “cannot possibly

have any direct impact on [the employers’ freedom

to worship and evangelize as they please.” 722 F.2d

at 403; see also id. at 400 (“there comes a time when

secular endeavor must be recognized as such, and

passes over the line separating it from the sacred

functions of religious worship”).

The court in Dole v. Shenandoah Baptist Church,

899 F.2d 1389 (4th Cir. 1990), also rejected a

religious school’s free exercise claim seeking

exemption from minimum wage and equal pay

requirements. The school argued that these

requirements impaired its ability to determine

matters of internal church governance “as well as

those of faith and doctrine,” including “its head-of-

household practice,” which “was based on a

sincerely-held belief derived from the Bible,” and

which required payment of a salary supplement to

male but not female teachers. Jd. at 1397 The

school’s employees intervened to support the school,

arguing that having their wages set by the

government, rather than by church governors, would

deprive them of blessings they would receive by

allowing their Lord to supply their needs. Id.

Nevertheless, the court concluded that “any burden

[imposed by fair pay requirements] would be

limited.” Jd. The “increased payroll expenses to

conform to FLSA requirements is not the sort of

burden that is determinative in a free exercise

claim.” Id. at 1397-98; see also EEOC v. Fremont

Christian Sch., 781 F.2d 1362 (9th Cir. 1986) (school

violated antidiscrimination law by offering unequal

health benefits to female employees); cf United

States v. Lee, 455 U.S. at 261 (applying statute that

accommodated religious beliefs of employer by

allowing him exemption from duty to pay into Social

Security system, but not to withhold payments with

respect to his employees). In sum, courts for

generations have been weighing how substantially,

or not, a challenged regulation burdens the religious

exercise of religiously motivated employers. The

decisions in past cases requiring those employers to

comply with neutral governmental rules further

confirm that the opt-out paperwork at issue here,

and the insurance disconnect it accomplishes,

impose at most a negligible burden on Petitioners

that falls far short of what RFRA requires to trigger

strict scrutiny review.

Moreover, these cases upholding regulation of

employers—including religious non-profits—are

consistent with precedent in other contexts finding

that generally applicable rules governing

professional or other marketplace conduct impose

only minimal burdens, if any cognizable burden at

all, on market participants’ religious exercise. For

example, courts repeatedly have rejected individuals’

assertions that generally applicable constraints on

conduct of health professionals impose improper

burdens on their religious exercise. See, e.g., Knight

v. Conn. Dep't. of Pub. Health, 275 F.3d 156, 164-65

(2d Cir. 2001) (denying free exercise claims of two

public employees whose religious speech at work was

inconsistent with professional standards that protect

patients); Berry v. Dep’t of Social Servs., 447 F.3d

642 (9th Cir. 2006) (county agency entitled to

prohibit employee from discussing religion with

clients); Bruff v. North Miss. Health Servs., Inc., 244

F.3d 495, 497-98 (5th Cir. 2001) (statutory duty to

accommodate counselor-employee’s religious needs

did not entitle her to refuse to counsel patients about

non-marital relationships); Moore v. Metro. Human

Serv. Dist., No. 09-6470, 2010 WL 3982312 (E.D. La.

Oct. 8, 2010) (publicly employed social worker not

entitled to religious accommodation allowing her to

impose religious views on others).

In a range of other contexts, courts likewise have

held that decisions of religious believers to engage in

market activity necessarily entails a duty to accept

certain regulatory constraints. See, eg., Jimmy

Swaggart Ministries v. Bd. of Equalization of Cal.,

493 U.S. 378, 389-91 (1990) (under strict scrutiny

test comparable to RFRA standard, generally

applicable sales tax did not impose “constitutionally

significant” burden on ministry's sale of religious

material because such a tax is “no different from

other generally applicable laws and regulations—

such as health and safety regulations—to which [the

ministry] must adhere”); Henderson v. Kennedy, 253

F.3d 12 (D.C. Cir. 2001) (under RFRA, regulation

banning T-shirt sales on National Mall did not

substantially burden claimants’ religious exercise);

Smith v. Fair Emp’t and Hous. Comm'n, 913 P.2d at

927-29 (under strict scrutiny, burden fair housing

law imposed on landlord with religious objection to

unmarried tenants was not substantial).

The supposed burden alleged by Petitioners from

needing to inform the government of their objection

to providing contraceptive coverage to their

employees is vastly more attenuated than the

requirement to purchase employee health insurance

challenged in Hobby Lobby, the pay equity

requirement upheld in Shenandoah Baptist Church,

or the requirement to counsel patients concerning

relationships considered sinful upheld in Bruwff.

Those requirements were held to demand that

complainants directly engage in conduct inconsistent

with their religious beliefs. Here, the accommodation

does not force Petitioners to provide contraception, to

pay for contraception insurance, or to have any

direct contact with contraception at all. Instead, the

accommodation completely separates Petitioners

from their employees’ independent decisions about

contraceptive use. Accordingly, Petitioners’ claimed

burden is simply their desire to separate employer

and employee information, which, if acceded to,

would restrict, or at least seriously burden, their

employees’ medical options and decision-making

(which, for some employees, may involve their own

religious decisions as well). The supposed burden on

these employers is incidental, if any burden at all.

Petitioners do press the new argument that

having to inform the government of their desire for

an accommodation makes them complicit in and

causes them tacitly to endorse contraceptive use

because their stepping out of the way allows the

insurers and TPAs to proceed with seamless

contraception coverage. But Petitioners’ endorse-

ment argument fails as a matter of law. In the

analogous free speech context, courts repeatedly

have rejected assertions that compliance with

generally applicable rules or regulations constitutes

any form of expression, let alone endorsement of

regulated conduct. For example, in FAJR, the Court

rejected a claim by law schools that the schools’

compliance with a statutory mandate to facilitate

military recruitment on campus would send a

message of agreement with the military’s policies.

547 U.S. at 65-67 Compliance with that mandate

sent no message at all, let alone a message “that law

schools agree with any speech by recruiters.” Jd. at

65 (citing Pruneyard Shopping Ctr. v. Robins, 447

U.S. 74, 88 (1980), which explained that the views of

those engaging in expressive activities in a privately

owned shopping center were unlikely to be identified

with the property owner, who remained free to

disassociate himself from those views and was

“not . . . being compelled to affirm [a] belief in any

governmentally prescribed position or view”); see

also Pickup v. Brown, 740 F.3d 1208, 1230 (9th Cir.

2014) (applying FAIR and rejecting challenge to

state law banning “sexual orientation change

efforts” as mental health treatment for minors);

Catholic Charities of Sacramento v. Superior Court

(Sacramento), 85 P.3d 67, 89 (2004) (“[C]ompliance

with a law regulating health care benefits is not

speech. The law leaves Catholic Charities free to

express its disapproval of _ prescription

contraceptives and to encourage its employees not to

use them. . [S]imple obedience to a law cannot

reasonably be seen as a statement of support for the

law or its purpose”).

The accommodation here actually takes the step

posited in FAIR and Pruneyard because, when an

institution submits its opt-out paperwork, the

government's alternate coverage system commun-

icates to employee-insureds the separateness of the

coverage and makes explicit that the employer has

no involvement. There cannot be any mistaken

impression that the employer is complicit,

condoning, or causing the provision of contraception.

Rather, the insurer or TPA confirms that the

coverage is provided solely by that entity, as

required by federal law within a secular, public

program.

The improper expansion of religious “freedom” at

others’ expense is even clearer if one considers

potential consequences in other contexts of

Petitioners’ claim. Imagine if a religious school could

block its students’ access to a mobile public clinic for

vaccines, dental care, or a blood drive. Employers or

schools with religious dietary restrictions may

contend that it would violate that institution’s

exercise of religion to have to notify workers or

students of the schedule for an off-site public

nutrition or subsidized meal program. Given publicly

stated positions,’ Amici already anticipate religious

employer refusals to making Social Security

payments that would protect a same-sex spouse, and

to providing confirming documentation to enable

Social Security disability payments for a dependent

child of a married same-sex couple. Some religiously

affiliated hospitals likewise may argue that they are

burdened by patients and employees whose same-sex

spouses are entitled to bedside visits, decision-

making, or spousal employment benefits.*

As in Lyng and Bowen v. Roy, religious freedom

may warrant accommodation but does not entitle

individuals to block or impose individual beliefs on

government programs that aim to meet broad public

needs, especially those involving compliance with a

complex regulatory scheme. Just as “[t]here is surely

no constitutional right, under the religion clauses of

the First Amendment, to pay substandard wages”

* See, e.g., Brief Amicus Curiae of United States Conference of

Catholic Bishops, et al., at 10-11 “(USCCB Amicus Brief’); U.S.

Conference of Catholic Bishops, Nondiscrimination in Health

Programs and Activities, RIN 0945-AA02, 2, 12-13, 17-18 (Nov.

6, 2015) (criticizing HHS’s proposed rules to implement ACA

Section 1557, which prohibits discrimination on various

grounds including sex in federally funded health services and

programs, which HHS proposes to interpret to cover forms of

discrimination against LGBT people), http://www.usccb.org/

about/general-counsel/rulemaking/upload/Comments-Proposal-

HHS-Reg-Nondiscrimination-Federally-F unded-Health.pdf

(“USCCB Section 1557 Comments’).

*In addition to objecting to same-sex relationships, the USCCB

objects to recognition of nonbinary gender identity and gender-

transition-related medical care. See, e.g., USCCB Amicus Brief

at 8, 26, n. 69; USCCB Section 1557 Comments at 2, 4-11, 16,

18.

due to an employer’s religious beliefs about employee

compensation, see Donovan, 722 F.2d at 403, there is

no religious liberty right under RFRA to block or

burden employees’ access to government-mandated,

independently provided insurance for medically

warranted health care.

In sum, it cannot be a cognizable burden on a

nonprofit’s religious exercise to be allowed the option

simply to inform the government of its objection to

an aspect of a government program in order to

exclude that aspect from the institution. One’s

religious freedom does not include a right to restrict

others’ freedoms. Petitioners’ protest thus exceeds

the scope of a valid religious free exercise claim

because it seeks to deny others’ freedom.

Il. DEEMING THE ACCOMMODATION

INSUFFICIENT WOULD NEGATE

SOUND, SETTLED PRECEDENTS THAT

LIMIT EVERYONE’S RIGHT TO IMPOSE

RELIGIOUS VIEWS ON THIRD PARTIES

TO THEIR DETRIMENT.

Petitioners argument, if accepted, would

transform our society into one in which religiously

affiliated nonprofits generally could insist that

government yield to their religious doctrine. But it is

long settled that religiously motivated employers

cannot exempt themselves from laws protecting

others from harm by asserting a religious motive for

their conduct. See, e.g., Lee, 455 U.S. at 261; ef.

Estate of Thornton v. Caldor, 472 U.S. 703, 709

(1985) (under Establishment Clause, striking down

law providing unqualified right of Sabbath observers

not to work on their Sabbath). Thus, even when

courts have found that a challenged regulation does

burden an employer’s religious exercise to an extent,

they nevertheless generally have upheld such

regulations as serving adequately compelling state

interests, including protection of others (whose

religious beliefs may differ from the employer's) who

would be harmed were the employer exempted from

the law. See, e.g., Lee, 455 U.S. at 261.

The Court affirmed this principle in Hobby

Lobby, stressing that the same accommodation at

issue here should be available to for-profit employers

with religious beliefs like the ones Petitioners

profess because the “effect . on the women

employed by Hobby Lobby . would be precisely

zero.” 1348S. Ct. at 2760.

Hobby Lobby thus honors the analysis provided

in Lee, in which a small business owner objected to

paying Social Security taxes for his employees

because of his—and his employees—religious

beliefs that accepting Social Security benefits and

paying Social Security taxes are sinful. This Court

acknowledged a conflict between Mr. Lee’s religious

beliefs and his tax obligations, and that a statutory

provision exempted him from the duty to pay such

taxes for his own self-employment. Lee, 455 U.S. at

257. The Court also determined, however, that he

nonetheless was required to pay these taxes for his

employees because “[g]ranting an exemption from

social security taxes to an employer operates to

impose the employer's religious faith on the

employees.” Id. at 261. In other words, while it may

be proper to accommodate an employer's religious

objection to direct participation in a secular, public

welfare program, the free exercise right does not

extend to hindering employees’ access to benefits

guaranteed by law for the public.

This remains the governing rule, resting on an

extensive body of precedent in which courts have

considered religious exercise claims in diverse

contexts and consistently have rejected such claims

where accommodating the asserted religious belief

could harm others. For example, applying the

Sherbert test codified by RFRA, the Second Circuit

has emphasized that courts frequently “have held

that the state’s interest outweighs any First

Amendment rights” where there is a “clear interest,

either on the part of society as a whole or at least in

relation to a third party, which would be

substantially affected by permitting the individual to

assert what he claimed to be his ‘free exercise’

rights.” Winters v. Miller, 446 F.2d 65, 70 (2d Cir.

1971), cert. denied, 404 U.S. 985 (1971), citing

Jacobson v. Massachusetts, 197 U.S. 11 (1905)

(compulsory vaccination); Prince v. Massachusetts,

321 U.S. 158 (1944) (violation of child labor laws);

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

(polygamy); People v. Handzik, 102 N.E.2d 340 (Ill.

1951) (criminal prosecution of faith healers who

practice medicine without a license); People uv.

Pierson, 68 N.E. 243 (N.Y. 1903) (serious illness of a

child); see also, e.g., Keeton v. Anderson-Wiley, 664

F.3d at 880 (college not required to allow counseling

student religious accommodation that would “evade

the curricular requirement that she not impose her

moral values on clients”); Walden v. CDC, 669 F.3d

at 1277; Spratt v. Kent Cty., 621 F Supp. 594, 600-

02 (W.D. Mich. 1985) (employer justified in firing

social worker for inclusion of religious practices

while counseling inmates); Benitez, 189 P.3d at 967

(under strict scrutiny, no religious exemption from

nondiscrimination law for physicians objecting to

treating lesbian patients).

Petitioners’ insistence on a religious right to

impair their employees’ access to medical insurance

concerns Amici because it flouts the “respect for

third parties” principle, and threatens to unsettle

that rule. In the United States, differing religious

beliefs about family life often have generated

disputes not only in employment, but also in medical

and other arenas. Disputes have arisen when

religious convictions prompted some to believe that

others have sinned or should be kept apart, leading

to discrimination in regulated, public settings.

Although some forms of religiously motivated

discrimination doubtless have receded, our history

tells a recurring saga of successive generations

asking anew whether the laws that shield religious

liberty can be made into a sword against others’

liberty and right to participate equally in civic life.

Our courts properly and_ consistently have

recognized that the answer to that question must

remain the same: religious beliefs do not entitle any

of us to harm others in defiance of generally

applicable laws protecting all of us.

Thus, for example, during the past century’s

struggles over racial integration, some Christian

schools restricted admission of African American

applicants based on beliefs that “mixing of the races”

would violate God’s commands. See Bob Jones Univ.

vu. United States, 461 U.S. 574, 580, 583 n.6 (1983).

Some restaurant owners refused to serve African

American customers citing religious objections to

“integration of the races.” Newman v. Piggie Park

Enters., Inc., 256 F. Supp. 941, 944-45 (D.S.C. 1966),

reu d 377 F.2d 433 (4th Cir. 1967), affd and modified

on other grounds, 390 U.S. 400 (1968). Religious

tenets also were used to support laws and policies

against interracial relationships and marriage. See,

e.g., Loving v. Virginia, 388 U.S. 1, 3 (1967) (in

decision invalidating state interracial marriage ban,

quoting trial judge’s admonition that “Almighty God

created the races white, black, yellow, malay and

red, and he placed them on separate continents.

The fact that he separated the races shows that he

did not intend for the races to mix.”); Whitney v.

Greater N.Y. Corp. of Seventh-Day Adventists, 401 F.

Supp. 1363 (S.D.N.Y. 1975) (firing of white clerk

typist for friendship with black person was not

protected exercise of religion despite church’s

religious objection to interracial friendships).

As our society began coming to grips with the

desire and need of women for equal treatment in the

workplace, some who objected on religious grounds

likewise sought exemptions from employment non-

discrimination laws as a free exercise right.

Notwithstanding the religious traditions on which

such claims often were premised, courts recognized

that these religious views could not be

accommodated in the workplace without vitiating

the sex discrimination protections on which workers

are entitled to depend. See, e.g., EEOC v. Fremont

Christian Sch., 781 F.2d at 1362 (holding it was sex

discrimination for school to offer unequal

employment benefits to female employees, despite

employer's religious motives); Bollenbach v. Bd. of

Educ., 659 F. Supp. 1450, 1473 (S.D.N.Y. 1987)

(rejecting as improper employer’s refusal to hire

women bus drivers in deference to religious

objections of Hasidic male student bus riders).

Similarly, after state and local governments

enacted fair housing laws that protected unmarried

couples, landlords unsuccessfully sought exemptions

based on their belief that they would sin by

providing residences in which tenants might commit

what they considered to be the sin of fornication. See,

e.g., Smith, 913 P.2d at 925 (rejecting religious

exercise claim of landlord because housing law did

not substantially burden religious exercise);

Swanner v. Anchorage Equal Rights Comm’n, 874

P.2d 274 (Alaska 1994) (same).

Across generations, then, these questions have

been asked and answered, echoing with reassuring

consistency as courts have recognized the public’s

abiding interests in securing fairness and peaceful

co-existence in the marketplace, in professional

services, and in public programs. Today, these

common interests are tested once again as LGBT

people seek full participation in American life.

There is growing understanding that sexual

orientation and gender identity are personal

characteristics bearing no relevance to one’s ability

to contribute to society, including one’s ability to

form a loving relationship and build a family

together. See, e.g., Obergefell v. Hodges, 135 S. Ct.

2584 (2015); United States v. Windsor, 133 S. Ct.

2675, 2694-96 (2013); Price Waterhouse v. Hopkins,

490 U.S. 228 (1989); Glenn v. Brumby, 663 F.3d 1312

(11th Cir. 2011).

Yet there remain pervasive and fervent objections

on the part of some major religious denominations to

the existence and right to inclusion and equal

treatment of LGBT people. For example, the United

States Conference of Catholic Bishops (“USCCB”)

has been firm in claiming a religious right of medical

programs and facilities operated under the Ethical

Religious Directives for Catholic Health Care

Services (“ERDs”) to disregard the marriages of

same-sex couples and the medical consensus about

treatment of gender dysphoria.‘ Accordingly. the

USCCB asserts a religious need to forbid gender-

transition care at Catholic facilities, and to deny

family benefits and spousal recognition to both

patients and employees with a same-sex spouse at

such facilities.” Catholic hospitals and health

prog. #ias may harbor similar objections when

medical professionals with a same-sex spouse

request leave pursuant to the Family and Medical

Leave Act, or when patients and nursing home

residents want a same-sex spouse respected for

visitation and medical decision-making purposes.

The stakes are high for LGBT people because

many of the institutions to which Respondents offer

the religious opt-out accommodation are large

nonprofit agencies engaged in providing licensed

professional services to the general public, often with

substantial public funding. For example, Catholic

* USCCB Section 1557 Comments, supra note 2, at 2, 4-13, 16-

18.

° Id. at 9, n.17; see also U.S. Conference of Catholic Bishops,

Discrimination on the Basis Sex, RIN 1250-AA05 (Mar. 30,

2015) (addressing proposed OFCCP rules governing federal

contractors and employers covered by Title VII, the federal

employment nondiscrimination law), http://www.usccb.org/

about/general-counsel/rulemaking/upload/Comments-Discrimin

ation-Basis-of-Sex-March-2015.pdf.

Charities agencies of Pittsburgh and of Washington

are among the petitioners. They are affiliated with

Catholic Charities USA, a national network, which is

the fifteenth largest charity in the United States

according to Forbes.® It had revenues of $4.5 billion

in 2014, of which $2.8 billion, or 62 percent, was

taxpayer funded.’ With those funds, Catholic

Charities agencies serve many of the most

vulnerable members of our society, including those

who are homeless, new immigrants, elderly, very

low-income, or disabled, “regardless of religious

affiliation.”* These services include a broad range of

secular programs that assist close to nine million

individuals annually*—including diverse health care

services,” housing supports,’ and disaster relief

efforts.'*

* Forbes, The 50 Largest U.S. Charities, #15 Catholic Charities

USA, _http://www.forbes.com/companies/catholic-charities-usa/

(last visited Feb. 12, 2016).

"Id.

* Catholic Charities USA, About, https://catholiccharitiesusa

org/about (last visited Feb. 12, 2016) (emphasis added).

*° Catholic Charities USA, The Catholic Charities Network,

https://catholiccharitiesusa.org/network (last visited Feb. 12,

2016).

prescription drug support, prenatal care, screenings, addiction

recovery, adult day services, nutrition, and infant and child

care. See Catholic Charities USA, Supporting Healthy Lives,

https://catholiccharitiesusa.org/efforts/supporting-healthy-lives

(last visited Feb. 12, 2016).

'' These include services to prevent homelessness by providing

financial assistance, emergency shelter, and supportive housing

These large nonprofits have come to occupy a

significant portion of the medical, nursing home, and

rehabilitative marketplace. Amici curiae USCCB, et

al., confirm this. USCCB Amici Curiae Br. at 8-18.

While the USCCB amici assert that the nonprofits

for whom they speak could not continue to provide

their social services to the public if required either to

use one of the “opt out” processes or to cease

providing health insurance to their workers, id., that

is simply not credible.

Even assuming the sincere religious inspiration

of many employed by these agencies, their

workforces as a whole are diverse, many of their

workers do not share the same faith, and the

services provided are not inherently religious.

Courts—both factually and legally—can and do

distinguish between’ religious’ services and

religiously inspired secular services. For example, in

Catholic Charities of Sacramento, 85 P.3d at 89, the

California Supreme Court enforced a state law

requiring inclusion of contraceptive coverage in

health plans of religiously affiliated social service

agencies as a sex equality measure, notwithstanding

RFRA and state free exercise claims, distinguishing

such agencies from houses of worship and other

for seniors, families, and people who are disabled or mentally

ill. See Catholic Charities USA, Sheltering Those In Need,

https://catholiccharitiesusa.org/efforts/sheltering-those-in-need

(last visited Feb. 12, 2016).

' These include providing cash assistance, food, water,

personal care supplies, and cleaning materials. See Catholic

Charities USA, Providing Disaster Relief, https://catholic

charitiesusa.org/efforts/providing-disaster-relief (last visited

Feb. 12, 2016).

inherently religious organizations. Yet,

notwithstanding that ruling requiring its compliance

with California’s contraceptive coverage law,

Catholic Charities of Sacramento continues to

operate in the state."

Amici emphasize the distinction between

organizations that exist to perform religious

functions for a congregation and those that serve the

public and thus are subject to government

regulation. Today, increasing amounts of medical

and social services are delivered to the general

public by faith-based or religiously affiliated

providers that assert a_ religious right to

discriminate based on sexual orientation or gender

identity. or to refuse basic services needed by LGBT

people, people living with HIV, women, people of

other faiths, and others. A significant contributor to

this problem is mergers of secular hospitals with

Catholic hospitals, during which the ERDs are

applied to the entire merged hospital system as a

requirement of the merger.’ A 2013 report by

'S See Catholic Charities of Sacramento, http://www.catholic

charitiessacramento.org/ (last visited Feb. 12, 2016); see also

Catholic Charities of California, Inc., http://catholic

charities.org/ (last visited Feb. 12, 2016). But see, e.g., Manya

A. Brachear, Agency takes over foster care in Rockford, Chicago

Tribune (June 16, 2011) (describing transfer of all caseworkers

and other staff from Catholic Charities to independent agency

with no disruption of services for children in state care when

state law required equal treatment of same-sex couples),

http://www.chicagotribune.com/news/local/breaking/chibrknews

-agency -replaces-catholic-charities-in-rockford-for-foster-care-

20110616-story.htm] (last visited Feb. 15, 2016).

'* Comprehensive information about these mergers is available

from MergerWatch, Protecting Patients’ Rights When Hospitals

MergerWatch compiled data about these mergers

during the 2001 to 2011 decade and yielded the

following findings:

e Between 2001 and 2011, the number of

Catholic-sponsored or -affiliated acute-care

hospitals increased by 16%, while all other

types of nonprofit hospitals declined in

numbers.

e In 2011, 10 of the 25 largest health

systems in the nation were Catholic