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

FILED

JAN 11 20%

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

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

In The

Supreme Court of the Anited States

SJ

MOST REVEREND DAVID A. ZUBIK, et al.,

Petitioners,

V.

SYLVIA BURWELL, et al.,

Respondents.

°

On Writs of Certiorari to the United

States Courts of Appeals for the

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

«

BRIEF OF AMICI CURIAE NATIONAL

ASSOCIATION OF EVANGELICALS, THE

CHURCH OF JESUS CHRIST OF LATTER-DAY

THE ASSEMBLIES OF GOD, THE

SISTERS OF ST. FRANCIS OF PERPETUAL

ADORATION, AND COLORADO CHRISTIAN

UNIVERSITY SUPPORTING PETITIONERS

¢

ALEXANDER DUSHKU

R. SHAWN GUNNARSON

Counsel of Record

JUSTIN W STARR

KIRTON MCCONKIE

1800 World Trade Center

60 E. South Temple Street

Salt Lake City, Utah 84111

(801) 328-3600

sgunnarson@kmclaw.com

January 11, 2016

COCKLE LEGAL BRIEFS (800) 225-495

WWW COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether the HHS contraceptive mandate and

its “accommodation” violate the Religious Freedom

Restoration Act (RFRA) by forcing some religious

nonprofits to act in violation of their religious beliefs,

all while the Government has failed to meet its

burden of demonstrating that this compulsion is the

least restrictive means of advancing a compelling

interest.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....00000.........ccccccccceeeeeeeees i

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INTEREST OF AMICI CURIAE ....................0000000 1

SUMMARY OF ARGUMENT .....00000......... ee eeee eens 1

FE siaiitectissnitenennitiiabintpenanindiinienpmescnatenaeds 4

I. RFRA Accounts for Harms to Third Parties

Through Its Balancing Test, Not a Cate-

STITT ncnsieniieraiieatenbinnidantadiabimnengaidiadninees 4

A. Hobby Lobby rejected the contention

that RFRA withholds protection when-

ever a religious accommodation ad-

versely affects others......................c0000++ 8

B. RFRA’s compelling interest test already

accounts for third-party harm .............. 9

C. The Government’s third-party-harm

argument collapses RFRA’s “least re-

strictive means” and “compelling inter-

est” tests into a single inquiry ............ 10

D. Allowing third-party harms to excuse

the Government from demonstrating a

compelling interest demotes the value

placed on the exercise of religion.......... 14

II. The Establishment Clause Is Not Violated

by Laws Like RFRA That Lift Regulatory

Mandates from Religion, Even If They

Harm Third Parties ......... eee 15

iil

TABLE OF CONTENTS — Continued

Page

A. Amos and five other precedents cor-

rectly hold that the Establishment

Clause allows a lawmaker to lift stat-

utory burdens from religious organ-

IIE icencoscnnnodinidgnnniiiensainbinisenenninennnees 17

B. Religious exemptions should not be

confused with religious preferences...... 20

C. Burdens on religion are measured un-

der the Establishment Clause by the

status quo ante — before the legal

mandate is first imposed....................... 26

D. Petitioners’ RFRA claims no more con-

flict with the Establishment Clause

than did the religious accommodation

upheld in Hobby Lobby..................00000008 29

E. Legislative exemptions for religious ex-

ercise bear no resemblance to an estab-

a 32

Ill. An Establishment Clause Rule Against

Third-Party Harm Would Nullify Other

Exemptions that Accommodate Religious

TEER Scarce Tee PT EO Sone eS LATO 34

EET TT ne On ee ee ere 38

APPENDIX

Individual Statements of Interest .....................00.0000. la

iv

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. ACLU, 542 U.S. 656 (2004)..................00 14

Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729

Tina cxiicatenidiaseasanintionienaledeionmmesonnsnibbaneiandbibanianiens 11

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.

Be Se cecesensnccnsntaceesinesineniesentatedntesimesnan passim

City of Boerne v. Flores, 521 U.S. 507 (1997)............. 13

Cnty. of Allegheny v. ACLU, 492 U.S. 573

Si nicaecsinnidiabipiasinntuaininrdiamnianbdpaainiainuaiovinmiiicninen 32

Corp. of the Presiding Bishop v. Amos, 483 U.S.

Be See crsonceniennssonennpuneneerintemennesenianiantel passim

Cutter v. Wilkinson, 544 U.S. 709 (2005)........... passim

E. Texas Baptist Univ. v. Burwell, 807 F.3d 630

ET ED: CUTIE iccntecinecsinnnincsnnnadinenienanitinieanapteceiemmeemeced 5

Employment Div. v. Smith, 494 US. 872

ee areietcnsnccsnencdncntsinasinntaaienaandinesgieneniinitied 13, 15, 20

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

Ga xcsevcnssocnnnsscntecsndeunesienpenennmaiesananmnnantenntnn passim

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)....... 14

Gillette v. United States, 401 U.S. 437 (1971).....17, 25, 37

Gonzales v. O Centro Espirita Beneficente

Unido Do Vegetal, 546 U.S. 418 (2006)........... passim

Hobbie v. Unemployment Appeals Comm'n, 480

Se TE chiciidiieiegsianittehicindinbiebibniembniies 18, 22, 25

Holt v. Hobbs, 135 S. Ct. 853 (2015).................... 16, 35

Vv

TABLE OF AUTHORITIES — Continued

Page

Hosanna-Tabor Evangelical Lutheran Church

& Sch. v. EEOC, 132 S. Ct. 694 (2012) .................. 36

Larkin v. Grendel’s Den, 459 U.S. 116 (1982).....24, 25, 29

Lee v. Weisman, 505 U.S. 577 (1992) ............ ccc cece eeeees 33

Little Sisters of the Poor v. Burwell, 794 F.3d

A Se ee 10

Lynch v. Donnelly, 465 U.S. 668 (1984) ..................... 37

Madison v. Riter, 355 F.3d 310 (4th Cir. 2003).......... 18

McGowan v. Maryland, 366 U.S. 420 (1961)............. 33

Priests for Life v. United States Dep't of Health

& Human Servs., 772 F.3d 229 (D.C. Cir.

IEEE CREEPS oe ee 6, 12, 13, 34

Snyder v. Phelps, 562 U.S. 443 (2011) .............. eee. 13

The Selective Draft Law Cases, 245 U.S. 366

REESE ane oer ee: 17, 25, 37

Torcaso v. Watkins, 367 U.S. 488 (1961).............. 24, 25

Town of Greece v. Galloway, 134 S.Ct. 1811

| EES RRR RON es oa OT ee 32

Trans World Airlines, Inc. v. Hardison, 432

I a el 23, 24, 25

United States v. Lee, 455 U.S. 252 (1982).................. 16

Univ. of Notre Dame v. Burwell, 786 F.3d 606

EEE LE Ae ee OO ee eR 7,13

Walz v. Tax Comm’n, 397 U.S. 664

ESO Teo aS ee He Oe 17, 25, 33, 37, 38

Wisconsin v. Yoder, 406 U.S. 205 (1972) .................... 11

Zorach v. Clauson, 343 U.S. 306 (1952)......... 17, 25, 37

vi

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISION

i SIS, © wihiniicitesitcciiniscnicensiinnninsinsonnnite passim

STATUTES

4 FG ene eee 36

eR rciittniiniensenesesedtenemianionen 34-35

A. Be ee iccereceseseccsecsscecsscecenssrsunssnnens 27

I UI inciitsniciceisiuanibiadnnebomnicninnenenl passim

£ | oR Eee neem 19, 30

a el I ciicirninicicisnncccsinicmeesioninennnes 5, 11

ID ccccnicinvticcienieiensnesieduniiosovecnnniiien 30

EE enn oe Eee passim

a ae I icsinnicilionininiisndiissininiiabaniaanenanian 35

I inniicnicnncnsievensiontnnensctennneiamnenestiite passim

es I oi iiinsiisicsinciiasdnidiicibinasesdnnbeiannibiiniasas 23

ee ee Oe ED corecccnrnsenssteensentsscsnncsenees 19, 23, 36

i i ccinicineideitiieraiemicienaill 23

Ey IEEE ciciisesunsciinvenenisenpesienenienantiniseenenenasinn 36

I asec diaaiaiael 36

) ferences 36

I a, Cats OF ND EI cccccsecsctcssecnansnsennestnmsenenniens 36

Py es Sr See cosicnccesnncerensenscnensansnnetnnntsseneniooneseneti 36

vii

TABLE OF AUTHORITIES — Continued

Page

REGULATIONS

78 Fed. Reg. 39,870 (July 2, 2013)............. 6, 13, 28, 30

80 Fed. Reg. 41,318 (July 14, 2015)..............00 ee 6

OTHER AUTHORITIES

Carl H. Esbeck, Third-Party Harms, Congres-

sional Statutes Accommodating Religion, and

the Establishment Clause (Univ. of Mo. Sch.

of Law Legal Studies Paper Series, Research

Paper No. 2015-10), available at http://papers.

ssrn.com/sol3/papers.cfm?abstract_id=2607277........ 18

Frederick Mark Gedicks & Rebecca G. Van

Tassell, RFRA Exemptions from the Contra-

ception Mandate: An Unconstitutional Ac-

commodation of Religion, 49 Harv. C.R.-C.L.

1 ARE CEP ars eae nena mene 32

Douglas Laycock, Regulatory Exemptions of Re-

ligious Behavior and the Original Under-

standing of the Establishment Clause, 81

NOTRE DAME L. REV. 1793 (2006) ..................... 33, 34

Douglas Laycock, Syllabus of Errors, 107 Micu.

I os aaacdiaasiasiton 28

JAMES MADISON: WRITINGS (Jack N. Rakove ed.,

ERED Mae So ee a eA a TORS eS T EET 34

Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I;

Establishment of Religion, 44 Wm. & Mary L.

EEE CR ee: 33

Viii

TABLE OF AUTHORITIES — Continued

Page

Micah Schwartzman, Richard Schragger, and

Nelson Tebbe, The Establishment Clause and

the Contraception Mandate, Balkinization,

Nov. 27, 2013, http://balkin. blogspot.com/2013/

11/the-establishment-clause-and.html...................... 32

1

INTEREST OF AMICI CURIAE'

Amici are a diverse group of religious organizations

concerned that the Religious Freedom Restoration

Act, 42 U.S.C. §§ 2000bb et seg. (RFRA), be accurately

interpreted and fully enforced. Some of these amici

actively participated in the effort to enact RFRA in

1993 and to amend it in 2001. Individual statements

by the amici are contained in the Appendix.

+

SUMMARY OF ARGUMENT

Religious freedom is secure only when fortified by

legal standards that are both clear and consistently

applied. Congress enacted RFRA to protect religious

freedom by requiring the Government to satisfy the

high demands of strict scrutiny whenever a law sub-

stantially burdens religious exercise. But RFRA’s

plain meaning is threatened by the Government's

misplaced concern with third-party harm.

This brief responds to the Government’s argu-

ment that RFRA does not protect religious exercise

when doing so would impose a detriment, loss, or

harm on third parties. The Government contends that

‘ The parties have consented to the filing of this brief and

letters indicating their consent are on file with the Clerk. No

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

no person or entity other than amici and their counsel made any

monetary contribution intended to fund the preparation or sub-

mission of this brief.

2

RFRA does not require accommodation of petitioners’

religious objections to facilitating contraceptive cov-

erage because a religious exemption will make it

more difficult for some of petitioners’ employees to get

such coverage.

The Government is mistaken. Making third-

party harm a categorical bar on relief eviscerates

RFRA. The statute already accounts for third-party

harm — but as part of a structured balancing test, not

as an absolute bar to relief. Nor does the Establish-

ment Clause limit RFRA’s vital protections. RFRA is

a religious exemption. Without exception, such ex-

emptions have been upheld by this Court as a valid

means of lifting legal burdens on religion. Unless

rejected, the Government’s third-party-harm princi-

ple will undermine numerous federal and state laws

providing religious exemptions in a wide variety of

contexts.

If the Government prevails, churches and other

religious organizations have much to lose. RFRA

reflects Congress’s determination that the exercise

of religion warrants the highest level of protection

known to federal law. But strict scrutiny would lose

considerable force if allegations of third-party harm,

no matter how mild, satisfy RFRA’s least-restrictive-

means test. RFRA would offer little protection for

religious organizations, even against trivial govern-

mental interests, if third-party harm were always

enough to thwart a claim. It is the Government’s

attempt to dilute RFRA — not the issue of contracep-

tion — that lends this case broad significance. At stake

3

is whether RFRA will remain an effective bulwark of

religious freedom.

The Government urges that petitioners’ religious

freedom under RFRA must yield to avoid placing even

minor obstacles in the way of contraceptive coverage.

Delivering contraceptive coverage through petitioners’

health plans is non-negotiable, the Government says,

because the unfamiliarity and inconvenience of other

means would marginally reduce the number of women

obtaining cost-free contraceptives. See Brief for the

Respondents in Opposition [hereinafter Br. Res. Opp.]

at 26-28, Zubik v. Burwell, Nos. 14-1418 & 15-191

(U.S. Aug. 20, 2015). Despite RFRA’s plain language,

the Government demands that petitioners’ civil rights

give way on “account of the burdens a requested

accommodation may impose on nonbeneficiaries,” no

matter how slight those burdens may be. Id. at 28

(quotation omitted).

Only two terms ago this Court rejected another

attempt to make third-party disadvantage an abso-

lute bar on RFRA claims. It repudiated the notion

that “any burden on religious exercise, no matter how

onerous and no matter how readily the government

interest could be achieved through alternative means,

is permissible under RFRA so long as the relevant

legal obligation requires the religious adherent to

confer a benefit on third parties.” Burwell v. Hobby

Lobby Stores, Inc., 134 S. Ct. 2751, 2781 n.37 (2014).

The Court reasoned that “[nJothing in the text of

RFRA or its basic purposes supports giving the Gov-

ernment an entirely free hand to impose burdens on

4

religious exercise so long as those burdens confer a

benefit on other individuals.” Jd.

That ruling was correct and this Court should

reaffirm it here. A rule deeming RFRA inapplicable

whenever an exemption would disadvantage third

parties finds no support in the plain language of

RFRA or controlling precedents under the Establish-

ment Clause. Indeed, making third-party harm a

total bar on religious accommodation would create

serious tensions with the First Amendment’s prohibi-

tion on civil courts taking up religious questions.

RFRA is a federal civil rights law enacted to

protect the exercise of religion as one of the Nation’s

highest values. The Government’s allegations of

third-party harm should not categorically bar relief

from federal laws that substantially burden religion.

Rejecting the Government’s argument is necessary to

preserve RFRA as a meaningful defense of religious

freedom.

¢

ARGUMENT

I. RFRA Accounts for Harms to Third Parties

Through Its Balancing Test, Not a Categor-

ical Rule.

Petitioners have shown that the challenged regu-

lations substantially burden their exercise of religion

by forcing them, under penalty of substantial fines, to

5

cooperate in a regulatory scheme that (according to

their faith) implicates them in grave sin.’ Their

answer to the problem of complicity — a “difficult and

important question of religion and moral philosophy,”

Hobby Lobby, 134 S. Ct. at 2778 — commands respect.

RFRA guarantees freedom for all sincere forms of

religious exercise, not just for those practices that

appear sensible to others. Before trivializing peti-

tioners’ objections, as some lower courts have done, it

should be remembered that “Thomas More went to

the scaffold rather than sign a little paper for the

King.” E. Texas Baptist Univ. v. Burwell, 807 F.3d

630, 635 (5th Cir. 2015) (Jones, J., dissenting from

the denial of reh’g en banc).

Because the challenged regulations impose a

substantial burden on petitioners’ religious exercise,

RFRA then requires the Government to show that

“application of the burden to the [petitioners] (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(b). Amici focus in this brief on the Gov-

ernment’s attempt to circumvent or neuter the “least

restrictive means” prong of the compelling interest

test.

* Although amici dispute the Government's authority to second-

guess how severely HHS regulations interfere with petitioners’

religious exercise, we leave to petitioners the task of addressing

the proper application of the “substantial burden” test.

6

The Government acknowledges that its regulations

aim to deliver contraceptive coverage from within a

religious employer’s “insurance coverage network”

using that employer’s “coverage administration infra-

structure.” 80 Fed. Reg. 41,318, 41,328 (July 14, 2015).

Yet the Government summarily rejects any “alterna-

tive approaches” for religious nonprofits to comply

with the contraceptive mandate on the grounds that

they are “‘not feasible and/or would not advance the

government's compelling interests as effectively” as

facilitating contraceptive benefits through petitioners’

own health plans or Third Party Administrators.

Br. Res. Opp. at 25, Zubik, Nos. 14-1418 & 15-191

(quoting 78 Fed. Reg. 39,870, 39,888 (July 2, 2013)).

The challenged regulations are allegedly necessary to

“‘{pjrovid[e) contraceptive services seamlessly togeth-

er with other health services, without cost sharing or

additioral administrative or logistical burdens and

within a system familiar to women. ’”” Id. at 28

(quoting Priests for Life v. United States Dept of

Health & Human Servs., 772 F.3d 229, 265 (D.C. Cir.

2014)). Any other approach, we are told, would “‘{i]m-

pos[e] additional barriers to women receiving the

intended coverage by requiring them to take steps

to learn about, and to sign up for, a new health bene-

fit, would make that coverage accessible to fewer

women.’” Jd. (quoting 78 Fed. Reg. at 39,888).’

* Some courts of appeals have mistakenly endorsed the

Government's position. See Priests for Life, 772 F.3d at 245

(distinguishing Hobby Lobby because “(t]he relief Plaintiffs seek

(Continued on following page)

7

Third-party harm is thus proffered as a sufficient

reason for denying petitioners a true accommodation

from the contraceptive mandate. By the Govern-

ment’s account, the prospect that someone will be

worse off if RFRA is enforced satisfies the least-

restrictive-means test. Third-party harm is cited not

to satisfy that test, but to dodge it. Other means of

achieving the Government’s regulatory aims without

burdening petitioners’ religious exercise are simply

unexplored. Never explained, for instance, is why the

same health benefits exchanges that serve tens of

millions of employees at Congress’s direction would

not also suffice for petitioners’ employees. In effect,

the Government proposes to withhold relief under

RFRA solely based on third-party harm, however

mild.

That is not the law. Nor should it be.

here would either deny the contraceptive coverage altogether

or, at a minimum, make the coverage no longer seamless from

the beneficiaries’ perspective”); Univ. of Notre Dame v. Burwell,

786 F.3d 606, 616 (7th Cir. 2015) (“But because it’s a bother for a

person to shop for the ‘best’ contraceptive coverage, the proposed

solution would reduce the number of women with such coverage,

compared to their being entitled to such coverage automatically

by virtue of being Notre Dame students or employees.”).

8

A. Hobby Lobby rejected the contention

that RFRA withholds protection when-

ever a religious accommodation ad-

versely affects others.

Hobby Lobby largely controls this case. There,

the Court rejected the Government’s proposed cate-

gorical rule that an exemption is not allowed under

RFRA when it would disadvantage third parties:

“Nothing in the text of RFRA or its basic purposes

supports giving the Government an entirely free hand

to impose burdens on religious exercise so long as

those burdens confer a benefit on other individuals.”

Hobby Lobby, 134 S. Ct. at 2781 n.37. In the words of

the principal dissent, the majority held that “dis-

advantages that religion-based opt-outs impose on

others[ |] hold no sway , at least when there is a

‘less restrictive alternative.’” Jd. at 2787 (Ginsburg

J., dissenting).

Notwithstanding Hobby Lobby, the Government

insists that petitioners’ RFRA claims should be de-

nied because delivering free contraceptives other than

through a woman’s employee health plan would have

a “‘detrimental effect’” on female employees and ben-

eficiaries, unlike the remedy in Hobby Lobby that had

“‘precisely zero’” effect on beneficiaries. Br. Res. Opp.

at 26, Zubik, Nos. 14-1418 & 15-191 (quoting Hobby

Lobby, 134 S. Ct. at 2781 n.37, 2760).* Hobby Lobby

* The Government gets no mileage from Justice Kennedy's

observation that the exercise of religion should not “unduly re-

strict other persons in protecting their own interests. ”

(Continued on following page)

9

plainly rejected the Government’s proposed rule, and

there is no reason to revisit that determination.

Granting relief under RFRA only when an exemption

or accommodation would have “precisely zero” effect

on putative beneficiaries or other parties would

punch a gaping hole in this vital civil rights law.

B. RFRA’s compelling interest test already

accounts for third-party harm.

Third-party harm is relevant when applying

RFRA, but the statute accounts for it in a structured

balancing test rather than as a categorical bar. Hobby

Lobby explained that third-party harms do not auto-

matically preclude relief:

It is certainly true that in applying

RFRA “courts must take adequate account of

the burdens a requested accommodation may

impose on nonbeneficiaries.” That considera-

‘tion will often inform the analysis of the

Government’s compelling interest and the

availability of a less restrictive means of ad-

vancing that interest. But it could not rea-

sonably be maintained that any burden on

Hobby Lobby, 134 S. Ct. at 2787 (Kennedy, J., concurring). He

hastened to stress the need “to reconcile these two priorities” of

religious freedom and access to contraception. Jd. And Justice

Kennedy never intimated that the accommodation approved in

Hobby Lobby was the only valid means of reconciliation or that

RFRA would “unduly restrict other persons” if the government

were required to make contraceptives available through a pro-

gram other than existing employee health plans. Jd.

10

religious exercise, no matter how onerous

and no matter how readily the governmental

interest could be achieved through alterna-

tive means, is permissible under RFRA so

long as the relevant !*zal obligation requires

the religious adherent to confer a benefit on

third parties.

Id. at 2781 n.37 (quoting Cutter v. Wilkinson, 544

U.S. 709, 720 (2005) (applying RLUIPA)); see Little

Sisters of the Poor v. Burwell, 794 F.3d 1115, 1195

n.50 (10th Cir. 2015) (holding that “the rights and

interests of third parties are properly weighed” under

RFRA’s “strict scrutiny” analysis).

RFRA is written to prevent the Government from

running roughshod over the exercise of religion even

when the challenged regulation confers entitlements

on third parties. Hobby Lobby, 134 S.Ct. at 2781

n.37 Regulations that confer entitlements or other

benefits on a discrete class of recipients are subject to

RFRA’s strict scrutiny standard no less than any

other category of laws. The statute’s structured bal-

ancing test thus already accounts for potential effects

on beneficiaries.

C. The Government’s third-party-harm

argument collapses RFRA’s “least re-

strictive means” and “compelling inter-

est” tests into a single inquiry.

The Government’s third-party-harm argument

misreads RFRA. Its text leaves no doubt that when

a law imposes a substantial burden on religion, “the

11

burden is placed squarely on the Government,” to

show that “the compelling interest test is satisfied

through application of the challenged law ‘to the per-

son’ — the particular claimant whose sincere exercise

of religion is being substantially burdened.” Gonzales

v. OCentro Espirita Beneficente Unido Do Vegetal,

546 U.S. 418, 430-31 (2006) (citing 42 U.S.C. § 2000bb-

1(b)). The Government does not escape that burden

by showing that the challenged law confers a benefit

or entitlement on a third party. Under the “focused

inquiry” that RFRA requires, “the Government’s mere

invocation” of a claimed interest “cannot carry the

day.” Id. at 432. Instead, courts “‘must searchingly

examine the interests that the State seeks to pro-

mote.’” Id. at 431 (quoting Wisconsin v. Yoder, 406

U.S. 205, 213 (1972)).

Hobby Lobby assumed for the sake of argument

that the Government has a compelling interest in

“guaranteeing cost-free access” to the full range of

FDA-approved contraceptive methods. 134 S. Ct. at

2780. Although we do not address that assumption in

this brief, the record below leaves no doubt that the

Government has failed to demonstrate a compelling

interest in using the health plans of religious employ-

ers as the sole available means of advancing its

interest. Nor could it. There is no “compelling interest

in each marginal percentage point by which [the

Government’s] goals are advanced.” Brown v. Entm'’t

Merchs. Ass’n, 131 S. Ct. 2729, 2741 n.9 (2011).

Yet the Government’s stated interest in provid-

ing contraceptive coverage “‘seamlessly together with

12

other health services, without cost sharing or addi-

tional administrative or logistical burdens and within

a system familiar to women,” Br. Res. Opp. at 28,

Zubik, Nos. 14-1418 & 15-191 (quoting Priests for

Life, 772 F.3d at 265), amounts to the audacious claim

that the Government has a compelling interest in

providing burden-free access to contraceptive services.

Thus, the Government baldly declares a compelling

interest in its policy objective (cost-free «ontraception)

and in the means it has chosen to pursue it (religious

employers’ insurance).

This Court repudiated a similarly brazen claim

in O Centro, where the government asserted “a com-

pelling interest in the uniform application of the

Controlled Substances Act, such that no exception to

the ban on the use of the hallucinogen can be made

to accommodate the sect’s sincere religious practice.”

O Centro, 546 U.S. at 423. Likewise, here, the Gov-

ernment asserts a compelling interest in the “seam-

less” delivery of contraceptive insurance and argues

that any exemption would undermine that interest. It

dismisses available alternatives with the untenable

excuse that making that coverage available outside of

petitioners’ health plans would defeat the Govern-

ment’s interests.

Intransigence toward individualized exceptions

runs headlong into RFRA’s least-restrictive-means

requirement. This “exceptionally demanding” test,

Hobby Lobby, 134 S. Ct. at 2780, obligates the Gov-

ernment to demonstrate that “it lacks other means

of achieving its desired goal without imposing a

13

substantial burden on the exercise of religion by the

objecting parties.” Jd. By effectively demanding that

this Court assume not only a compelling interest in

its ends (as in Hobby Lobby) but also in its means, the

Government collapses the compelling-interest and

least-restrictive prongs of strict scrutiny into a one-

criterion standard. Then the Government cites inci-

dental inconveniences — the need “to take steps to

learn about, and to sign up for, a new health benefit,”

78 Fed. Reg. at 39,888, “even minor added steps,”

Priests for Life, 772 F.3d at 265, or simply the “both-

er” of “shop[ping] for the ‘best’ contraceptive cover-

age,” Univ. of Notre Dame, 786 F.3d at 616 — as

sufficient to override petitioners’ religious exercise.

Evaded is RFRA’s searching inquiry into the feasibil-

ity of alternatives and the government’s proffered

reasons for rejecting them.

So ends RFRA’s command to apply “the most

demanding test known to constitutional law.” City of

Boerne v. Flores, 521 U.S. 507, 534 (1997). Reliance

on third-party harm as an absolute bar to RFRA

claims, if adopted, could not be limited to RFRA. It

would inevitably “water{] down” strict scrutiny in a way

that “would subvert its rigor in other fields where it is

applied.” Employment Div. v. Smith, 494 U.S. 872,

888 (1990). If avoiding harm to third parties always

satisfies strict scrutiny, freedom of speech would no

longer protect speakers who injure others — espe-

cially, one imagines, where harm is inflicted deliber-

ately. But see Snyder v. Phelps, 562 U.S. 443, 458-61

(2011) (anti-LGBT demonstration near serviceperson’s

14

funeral protected); Gertz v. Robert Welch, Inc., 418

U.S. 323 (1974) (defamatory speech protected); Ash-

croft v. ACLU, 542 U.S. 656 (2004) (declining to relax

strict scrutiny when the government seeks to protect

children from harmful speech). Third-party harm can-

not be erected as an impenetrable shield against

RFRA claims without seriously undermining the

same compelling interest test that protects freedom of

speech and other essential rights. Maintaining the

integrity of the compelling interest test requires that

“RFRA challenges should be adjudicated in the same

manner as constitutionally mandated applications of

the test.” O Centro, 546 U.S. at 430.

D. Allowing third-party harms to excuse

the Government from demonstrating a

compelling interest demotes the value

placed on the exercise of religion.

The Government’s third-party-harm rule also fal-

ters by placing a lower value on religious exercise

than on unmodified access to a new public entitle-

ment. RFRA requires the reverse.

RFRA places religious freedom above other gov-

ernmental interests when a law substantially bur-

dens religious exercise. “The only exception

requires the Government to satisfy the compelling

interest test. ” OCentro, 546 U.S. at 424. The

Government’s no-third-party-burden argument im-

properly reduces the value that RFRA places on re-

ligious exercise. In a society as interconnected as

15

ours, where no person is an island and where gov-

ernment is constantly adjusting the benefits and

burdens of modern life, nearly every religious exemp-

tion or accommodation can be said to impose some

burden on someone. If that were enough to defeat a

RFRA claim, then RFRA would be meaningless. This

is surely not what Congress intended in fashioning

RFRA’s “very broad protection for religious liberty.”

Hobby Lobby, 134 S. Ct. at 2767

Making third-party harm a categorical bar on

otherwise valid claims for a religious exemption

undermines the whole point of RFRA — which was to

elevate religious exercise to the heights that Congress

understood it to occupy before Smith. In this case, the

Government’s asserted third-party harm centers on

the legitimate interests of petitioners’ employees. But

if a RFRA claim can be defeated simply by identifying

someone who will be worse off if it succeeds, there

will be incentive to concoct trivial harms. Congress

could not have intended rights protected by RFRA to

be so readily thwarted.

Il. The Establishment Clause Is Not Violated

by Laws Like RFRA That Lift Regulatory

Mandates from Religion, Even If They

Harm Third Parties.

Lurking behind the Government’s categorical

bar is a constitutional argument expressed by the

principal dissent in Hobby Lobby. Justice Ginsburg

contended that “the government’s license to grant

16

religion-based exemptions from generally applicable

laws is constrained by the Establishment Clause.”

134 S. Ct. at 2802 n.25 (citation omitted). Warming to

this theme, she wrote that “one person’s right to free

exercise must be kept in harmony with the rights of

her fellow citizens, and ‘some religious practices

[must] yield to the common good.’” Id. (quoting

United States v. Lee, 455 U.S. 252, 259 (1982)).°

Unobjectionable as these principles might be in

some settings, here they mistakenly suggest that

applying RFRA somehow transgresses the Estab-

lishment Clause. Not so. An unbroken line of six

Establishment Clause precedents in this Court con-

firms that government may exempt religious be-

lievers and religious organizations from laws and

regulations. Petitioners’ RFRA claims are consistent

with that long-settled principle.

* A concern with third-party harm likewise prompted Jus-

tice Ginsburg to register a separate concurrence to explain why

she supported the right of a prisoner to obtain a religious exemp-

tion from a prison rule banning beards: “Unlike the exemption

this Court approved in Burwell accommodating petitioner’s

religious belief in this case would not detrimentally affect others

who do not share petitioner’s belief.” Holt v. Hobbs, 135 S. Ct.

853, 867 (2015) (Ginsburg, J., concurring).

17

A. Amos and five other precedents correctly

hold that the Establishment Clause al-

lows a lawmaker to lift statutory bur-

dens from religious organizations.

Six decisions of this Court hold tha‘ when a

general regulatory or tax law imposes a burden on a

religious belief or practice, lawmakers may lift that

burden without violating the Establishment Clause.

See Corp. of the Presiding Bishop v. Amos, 483 U.S.

327 (1987) (holding that the religious exemption for

employers in Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e (Title VII), does not violate the

Establishment Clause); Cutter, 544 U.S. at 709 (hold-

ing that Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. § 2000cc (RLUIPA), does not

violate Establishment Clause); Gillette v. United

States, 401 U.S. 437 (1971) (upholding religious

exemption from military draft for those opposing all

war); Walz v. Tax Comm’n, 397 U.S. 664, 664 (1970)

(sustaining property tax exemptions for religious

organizations); Zorach v. Clauson, 343 U.S. 306

(1952) (affirming validity of local public school policy

enabling pupils voluntarily to attend religion classes

away from school grounds); The Selective Draft Law

Cases, 245 U.S. 366 (1918) (upholding military draft

exemption for clergy, seminarians, and pacifists).

Exempting religious practice from generally ap-

plicable laws has the net effect of leaving religion

alone. And for the government to leave religion alone

is not to establish a religion. For there is “room for

play in the joints” between the Religion Clauses,

Walz, 397 U.S. at 669, within which “government may

18

(and sometimes must) accommodate religious prac-

tices without violating the Establishment Clause.”

Hobbie v. Unemployment Appeals Comm’n, 480 U.S.

136, 144-45 (1987).

This Court’s precedents establish that lawmakers

may enact religious exemptions but not unyielding

religious preferences. A religious exemption is when

government lifts a burden of its own making on

religious beliefs or practices. A religious preference is

when government gives religion a naked advantage

that it would not have had without legislative assis-

tance. See Carl H. Esbeck, Third-Party Harms, Con-

gressional Statutes Accommodating Religion, and the

Establishment Clause (Univ. of Mo. Sch. of Law Legal

Studies Paper Series, Research Paper No. 2015-10),

available at http://papers.ssrn.com/sol3/papers.cfm?

abstract_id=2607277; see also Madison v. Riter, 355

F.3d 310, 320-21 (4th Cir. 2003) (explaining that

RLUIPA is a valid legislative effort to lift “govern-

ment-imposed burdens on _ religious exercise”).

A religious exemption rests on the “proper pur-

pose” or a “permissible legislative purpose” of seeking

“to alleviate significant governmental interference

with the ability of religious organizations to define

and carry out their religious missions.” Amos, 483

U.S. at 335. Moreover, when such a law ‘lift/s] a

regulation that burdens the exercise of religion,” it is

unnecessary for “the exemption [to] come packaged

with benefits to secular entities.” Jd. at 338.

19

The leading decision on religious exemptions is

Amos, which upheld a statutory exemption, 42 U.S.C.

§ 2000e-1(a), which excuses religious employers from

Title VITs prohibition on religious discrimination in

employment. Amos, 483 U.S. at 331-33. The contro-

versy in Amos arose when a building custodian em-

ployed at a gymnasium operated by The Church of

Jesus Christ of Latter-day Saints was discharged for

ceasing to be a church member in good standing. The

Title VII exemption, however, was not an instance

of government “abandoning neutrality” to enact a re-

ligious preference: “it [wa]s a permissible legislative

purpose to alleviate” a general regulatory burden,

thereby leaving religious organizations free “to define

and carry out their religious missions” as they see fit.

Id.

Establishment Clause attacks on federal statutes

dictating religious exemptions have uniformly failed.

RLUIPA withstood a facial challenge in Cutter, where

it was held to be consistent with the First Amend-

ment for two independent reasons. The “[fJoremost”

reason for finding the institutionalized-persons com-

ponent of RLUIPA valid was that “it alleviates ex-

ceptional government-created burdens on private

religious exercise.” Cutter, 544 U.S. at 720. It sur-

vived Establishment Clause scrutiny as well because

under RLUIPA “courts must take adequate account of

the burdens a requested accommodation may impose

on nonbeneficiaries and they must be satisfied

that the Act’s prescriptions will be administered

neutrally among different faiths.” Jd. (citations and

20

footnote omitted). Because RLUIPA was not “unyield-

ing” toward third-party harms, a unanimous Court

upheld its constitutionality.

RFRA employs “the same standard” as RLUIPA —

a standard held in Cutter not to “violate the Estab-

lishment Clause.” O Centro, 546 U.S. at 436 (citing

Cutter, 544 U.S. at 709). Cutter and O Centro stressed

“the feasibility of case-by-case consideration of reli-

gious exemptions to generally applicable rules.” Jd.

Both decisions thus confirmed that courts are “up to

the task” of applying “the compelling interest test

‘in an appropriately balanced way’ to specific claims

for exemptions as they arliJse.” Jd. (quoting Cutter,

544 U.S. at 710).

More than that, the Free Exercise Clause en-

courages discretionary accommodations like RFRA.

For “a society that believes in the negative protection

accorded to religious belief can be expected to be so-

licitous of that value in its legislation as well.” Smith,

494 U.S. at 890. RFRA manifests exactly what Smith

invited — Congress’s solicitude toward the free exer-

cise of religion.

B. Religious exemptions should not be con-

fused with religious preferences.

Treating third-party harm as a constitutional bar

on religious exemptions misreads Estate of Thornton

v. Caldor, Inc., 472 U.S. 703 (1985). Caldor arose from

a Connecticut statute, which provided that “[n]o

person who states that a particular day of the week is

21

observed as his Sabbath may be required by his em-

ployer to work on such day.” Id. at 706. Obviously, no

such right existed before the statute became law.

Thornton was a department store employee who ob-

served Sunday as his Sabbath, so he requested Sun-

days off and invoked the Connecticut statute. The

store refused his request and challenged the statute

under the Establishment Clause. Jd. at 707, 710-11.

The Court struck down the statute, noting that

it “arms Sabbath observers with an absolute and

unqualified right not to work on whatever day they

designated as their Sabbath.” Jd. at 709 (footnote

omitted). In rigidly altering common-law contract

rights, which had long afforded substantial flexibility

to employers to manage their workplaces to respond

to employee and market needs, the Connecticut

statute failed to account for how an employer could

respond “if a high percentage of an employer’s work-

force asserts rights to the same Sabbath.” Jd. Rather,

the law granted an “unyielding weighting in favor of

Sabbath observers over all other interests.” Id. at

710. Sabbath observers would always prevail over

coworkers with more seniority wanting weekends

off, perhaps, to join a spouse or to be with children at

home. Jd. at 710 n.9. All this was problematic

“(ulnder the Religion Clauses,” the Court reasoned,

because of the basic principle that “government

must take pains not to compel people to act in the

name of any religion.” Jd. at 708. It was the prospect

of government compulsion — not increased business

expense — that prompted the Court’s concern. The

22

Connecticut law violated the Establishment Clause

by compelling employers to assist employees like

Thornton in their Sabbath observance.

Caldor struck down a religious preference, whereas

Amos affirmed a religious exemption. Thornton’s re-

ligious burden was not caused by a new legal man-

date but by the demands of private employment.

Connecticut lawmakers empowered Thornton and

others like him to force others to help ensure the

availability of Sabbath observance. Id. at 709. Unlike

the exemption in Amos, which lifted a governmental

burden on religious practice, the preference in Caldor

lifted a private market burden on some religious em-

ployees by shifting a burden to employers and other

employees. Effectively, Connecticut intervened on the

side of a private religious practice, placing that value

above all other interests. Such unadorned favoritism

transgresses the Establishment Clause.

This blatant religious preference explains why

Caldor said that “a fundamental principle of the Re-

ligion Clauses” is that the First Amendment “gives no

one the right to insist that in pursuit of their own

interests others must conform their conduct to his

own religious necessities.” Id. at 710 (citations and

quotations omitted). Read in isolation, this remark

might appear to be a broad restriction on the validity

of religious exemptions. But the Court has since clar-

ified its meaning. See Hobbie, 480 U.S. at 145 n.11

(distinguishing Caldor because giving unemployment

benefits to people who quit work over a religious con-

flict does not give them “an absolute right” or place

23

“an unacceptable burden on employers and coworkers”

by failing to include “exceptions for special circum-

stances”); Amos, 483 U.S. at 337 n.15 (distinguishing

Caldor because “it was the Church and not the

Government, who put [the employee] to the choice of

changing his religious practices or losing his job” and

because the challenged exemption did not invest the

employer’s religious standards with “the force of

law”).

Another religious preference was before the

Court in Trans World Airlines, Inc. v. Hardison, 432

U.S. 63 (1977). In Hardison an airline clerk requested

time off on Saturdays to observe his Sabbath. When

his request was denied because of a union-based sen-

iority system, he refused to report to work on Satur-

days and was fired. Jd. at 66-67 He brought suit

against the airline alleging that it had violated a Title

VII provision requiring employers to make “reason-

able accommodations” to their employees’ religious

needs unless it would impose an “undue hardship.” 42

U.S.C. § 2000e(j).° As in Caldor, the Court was con-

cerned that the requested exemption would “require

an employer to discriminate against some employees

in order to enable others to observe their Sabbath.”

Hardison, 432 U.S. at 85. To avoid that possibility,

* Different provisions of Title VII were at issue in Hardison

and Amos. The former involved a statutory preference favoring

religious employees, 42 U.S.C. § 2000e(j), while the latter in-

volved a statutory exemption for religious employers, 42 U.S.C.

§§ 2000e-1(a), 2000e-2(eX2).

24

the Court adopted one of several possible construc-

tions of “undue hardship” — the now-familiar “de

minimis” standard that affords maximum flexibility

to employers — which obviated the need to determine

whether a stronger accommodation requirement

would violate the Establishment Clause. See id. at 89

(Marshall, J., dissenting). But while the precise limits

of statutory accommodations for religion in the work-

place are unclear, Amos denies that religious exemp-

tions must impose no more than de minimis burdens

on third parties. Amos itself contradicted that notion

by affirming the authority of a church to terminate

employment for purely religious reasons.

Religious preferences are uncommon — but there

are a few instances of them besides Caldor and

Hardison. Torcaso v. Watkins, 367 U.S. 488 (1961), set

aside a Maryland constitutional provision requiring

public office holders to declare a belief in God. Id. at

495-96. Maryland offered no alternatives, such as an

affirmation or a profession of strict fidelity to the law.

Requiring the notary to profess a belief in God re-

flected government taking the side of religion on the

controverted issue of who can be trusted to hold

public office. Also, Larkin v. Grendel’s Den, 459 U.S.

116 (1982) overturned a Massachusetts law that

handed churches a veto over the issuance of a liquor

license to businesses situated within a 500-foot radius

of the church. Legitimate concerns about the location

of businesses with liquor licenses may be answered

with a flat ban within a certain proximity of a church

or an entitlement for religious organizations, along

25

with other affected entities, to receive a hearing

where their concerns “would be entitled to substantial

weight.” Jd. at 124. But the state could not delegate a

“unilateral and absolute power” for a church to deny a

liquor license. Id. at 127.

Caldor stands alongside Hardison, Torcaso, and

Larkin, just as Amos stands with Cutter, Gillette,

Walz, Zorach, and The Selective Draft Law Cases.

Religious preferences like the statute in Caldor that

betray an “unyielding” preference for a_ religious

belief or observance particular to some religions

violate the Establishment Clause. Religious pref-

erences exhibit the lawmaker’s attempt to fortify

religion against privately created conflicts by arming

a religious believer or institution with the power to

compel others in the private sphere to aid religious

practice. These features set apart a religious prefer-

ence from a religious exemption. Amos and other

exemption decisions affirm the validity of laws that

lift government-imposed burdens on religious prac-

tice. What distinguishes a religious exemption from a

religious preference is the source of the burden on

religious practice. See Hobbie, 480 U.S. at 145 n.11;

Amos, 438 U.S. at 337 n.15.

RFRA falls in the category of religious exemp-

tions. Its central requirement is for courts to apply

“the compelling interest test ‘in an appropriately

balanced way’ to specific claims for exemptions as

they arliJse.” O Centro, 546 U.S. at 436 (quotation

omitted). But there remains the question of where to

26

draw the baseline identifying when a burden on

religious exercise originates.

C. Burdens on religion are measured under

the Establishment Clause by the status

quo ante — before the legal mandate is

first imposed.

Amos conclusively answers this baseline ques-

tion. It rejected the view that “the Church’s ability to

propagate its religious doctrine is any greater now

than it was prior to the passage of the Civil Rights

Act in 1964.” 483 U.S. at 337. And it reasoned that an

exemption for religious employers could not be “fairly

attributed to the Government, as opposed to the

Church.” Id. (footnote omitted). Given the pre-1964

baseline used in Amos, the 1972 amendment expand-

ing the scope of the exemption, id. at 332 n.9, was not

a new “benefit” but merely returned the church to the

unregulated status it enjoyed under the common law

before federal law prohibited religious discrimination

in employment. Amos thus holds that the baseline

lies where the law first interferes with religious

practice. The test is whether an exemption lifting

that burden increases the capacity of a religious

person or organization “to propagate its religious

doctrine” or otherwise practice religion relative to the

law that existed “prior to the passage” of the legal

mandate that interfered with religion. Jd.

Amos nowhere suggests that the baseline is

measured by which statute — the exemption or the

27

mandate — is enacted first. It drew the baseline at the

enactment of the 1964 Civil Rights Act, when the law

first interfered with religious practice. Hobby Lobby

did the same. Granting the RFRA exemption re-

turned employers and employees to the status quo

ante, their respective positions before the HHS con-

traception mandate was binding. Before the Afford-

able Care Act, see 42 U.S.C. § 300gg-13(a)(4), Hobby

Lobby and other employers with similar religious

objections toward emergency contraceptives could

provide employee health care without including such

contraceptives. Exempting Hobby Lobby under RFRA

lifts a mandate created by the HHS regulations.

Amos, Cutter, and the other religious exemption

decisions instruct that leaving religion alone does not

establish religion.

Fixing the baseline at the right place illuminates

whether a law qualifies as a valid religious exemp-

tion. Amos and other religious exemption decisions

emphasize that removing an earlier-imposed legal

mandate from a religious organization does not

establish religion. But that does not mean that the

exemption had no effect on others. Consider Amos.

Exempting religious organizations from a general ban

on employment discrimination allowed the church to

dismiss a building custodian for falling short of the

church’s standards. By necessity, the religious exemp-

tion denied employment protections that would have

protected the employee.

Compared with loss of employment in Amos, the

third-party harm projected by the Government here

28

is minor. We are told that “‘iJmposing additional

barriers to women receiving the intended coverage

by requiring them to take steps to learn about,

and to sign up for, a new health benefit, would make

that coverage accessible to fewer women.’” Br. Res.

Opp. at 28, Zubik, Nos. 14-1418 & 15-191 (quoting 78

Fed. Reg. at 39,888). As we understand it, granting

petitioners relief will not deprive their employees of

contraception, though it may require employees to

obtain it outside of their health plans. However in-

convenient or burdensome, the resulting harm is

surely less than the loss of employment as in Amos.

Third-party harm is too malleable a concept to

operate as a categorical bar on the exercise of re-

ligion. Although “religious believers have no con-

stitutional right to inflict significant harm on

nonconsenting others,” not all detriments qualify as

bona fide harms. Douglas Laycock, Syllabus of Er-

rors, 107 Micn. L. Rev. 1169, 1171 (2007). “[Wle live

in a crowded society, where routine activities both

inconvenience those around us and impose significant

risks” and “[wJe also have an expansive capacity to

define as harmful anything we don’t like.” Jd. Free-

dom of religion assuredly does not include the un-

qualified right to impose burdens on third parties

that the common law and our legal traditions have

long considered harm, such as injuries to person,

property, or reputation. But, as petitioners explain,

“there is a sharp difference between preventing a

religious group from inflicting harm and coercing it

to provide benefits.” Brief for Petitioners in Nos. 14-

1418, 1453 & 14-1505, at 53, Zubik (U.S. Jan. 4,

29

2016). Confirming that distinction is RFRA itself,

which embodies Congress’s judgment that religious

exercise holds paramount importance — more than

unobstructed access to a new federal health program.

No religious exemption has ever failed scrutiny

under the Establishment Clause. Although unyield-

ing religious preferences are forbidden, Caldor, 472

U.S. at 710; Larkin, 459 U.S. at 127, Amos and five

other precedents confirm that religious exemptions

like RFRA are perfectly valid — even when they result

in third-party burdens.

D. Petitioners’ RFRA claims no more con-

flict with the Establishment Clause than

did the religious accommodation up-

held in Hobby Lobby.

Amos and other precedents confirm that religious

exemptions do not offend the Establishment Clause.

Hobby Lobby specifically extended that principle to

the Affordable Care Act, holding that RFRA entitled

closely held for-profit corporations to an exemption

from the contraceptive mandate without pausing to

consider whether applying RFRA runs up against

Establishment Clause barriers. 134 S. Ct. at 2785. No

such barriers should impede petitioners’ RFRA claim

for relief from the same contraceptive mandate.

Yet, in essence, the Government insists that peti-

tioners are greedy, “contending that even more is

required” than what Hobby Lobby endorsed. Br. Res.

Opp. at 26, Zubik, Nos. 14-1418 & 15-191. Petitioners

30

are chided for “seek[ing] to invalidate the very regu-

latory accommodation that Hobby Lobby identified.”

Id.

This critique falls short. Hobby Lobby acknow]l-

edged that the exemption approved there might not

“compl[y] with RFRA for purposes of all religious

claims.” 134 S. Ct. at 2782 (footnote omitted). Regu-

latory adjustments that accommodate one person’s

religious practice may not accommodate another,

and RFRA requires individualized exemptions — not

blanket ones. 42 U.S.C. § 2000bb-1(c). Nothing in

RFRA obligates petitioners to accept a regulatory ex-

emption devised for others.

The prospect of third-party harm “simply does

not provide a categorical answer that relieves the

Government of this obligation to shoulder its burden

under RFRA.” O Centro, 546 U.S. at 432. The Gov-

ernment is obligated to devise accommodations in-

dividually. Shorn of its constitutional pretensions, the

Government’s position is that petitioners’ RFRA claim

should yield because requiring their female employ-

ees and beneficiaries “‘to take steps to learn about,

and to sign up for, a new health benefit, would make

that coverage accessible to fewer women.’” Br. Res.

Opp. at 28, Zubik, Nos. 14-1418 & 15-191 (quoting 78

Fed. Reg. at 39,888). That is not the law. Congress’s

value judgment is that “[glovernment shall not sub-

stantially burden a person’s exercise of religion.” 42

U.S.C. § 2000bb-1(a). It has not placed the same high

value on “‘plroviding contraceptive services seam-

lessly together with other health services, without

31

cost sharing or additional administrative or logistical

burdens and within a system familiar to women.’” Br.

Res. Opp. at 28, Zubik, Nos. 14-1418 & 15-191. If

these values are to be placed on the scales, the text of

RFRA — and the constitutional text, history, and na-

tional traditions standing behind it — means that

religious freedom ought to prevail over “seamless” or

burden-free access to a new federal benefit.

But zero sum contests are unnecessary. Hobby

Lobby recognized that the employees of religious or-

ganizations need not suffer any real detriment be-

cause “the Government can readily arrange for other

methods of providing contraceptives, without cost

sharing, to employees who are unable to obtain them

under their health-insurance plans due to their em-

ployers’ religious objections.” Hobby Lobby, 134 S. Ct.

at 2781 n.37. HHS stiff-arms that easy solution in

this case by its unwillingness to consider any alterna-

tive arrangements for religious nonprofits like peti-

tioners. In that rigidity, not in RFRA, lies the real

problem.

Whatever else, the Government’s categorical

third-party rule is not dictated by the Establishment

Clause. Amos, Cutter, O Centro and other religious

exemption decisions underscore the validity of legis-

lative efforts to adjust legal requirements to individ-

ual religious commitments. And nothing distinctive

about petitioners’ RFRA claims condemns them as

facially unreasonable. It is the Government — not pe-

titioners — that itches to replace RFRA’s command to

“strike sensible balances,” O Centro, 546 U.S. at 439,

32

with a sweeping rule that would deny religious ex-

emptions on a bare showing that someone else might

be worse off if religion is accommodated.

E. Legislative exemptions for religious ex-

ercise bear no resemblance to an estab-

lished church.

Some critics go so far as to argue that RFRA

resembles “the prototypical established church” by

“forcing those who do not belong to a religion to bear

the material costs of practicing it.” Frederick Mark

Gedicks & Rebecca G. Van Tassell, RFRA Exemptions

from the Contraception Mandate: An Unconstitutional

Accommodation of Religion, 49 Harv. C.R.-C.L. L.

Rev. 343, 363 (2014); see Micah Schwartzman, Rich-

ard Schragger, and Nelson Tebbe, The Establishment

Clause and the Contraception Mandate, Balkinization,

Nov. 27, 2013, http://balkin.blogspot.com/2013/11/

the-establishment-clause-and.html (concluding that,

with regard to the application of RFRA in Hobby

Lobby, “lilf those exemptions impose substantial

burdens on employees, then courts must reject them

as violations of the Establishment Clause”).

Not so. RFRA and other religious exemptions are

nothing like an established church. Establishment

Clause jurisprudence takes its bearings from “‘histor-

ical practices and understandings.’” Town of Greece

v. Galloway, 134 S.Ct. 1811, 1819 (2014) (quoting

Cnty. of Allegheny v. ACLU, 492 U.S. 573, 670 (1989)

33

(Kennedy, J., concurring in the judgment in part and

dissenting in part)). Of special importance are the

attributes of “the established church as it had been

known in England and in most of the Colonies.”

McGowan v. Maryland, 366 U.S. 420, 465 (1961)

(Frankfurter, J., separate op.). History records that

the chief attributes of an established church were

“coercion of religious orthodoxy and of financial sup-

port by force of law and threat of penalty.” Lee v.

Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissent-

ing) (emphasis added). Established churches exercised

coercion through “(1) control over doctrine, governance,

and personnel of the church; (2) compulsory church

attendance; (3) financial support; (4) prohibitions on

worship in dissenting churches; (5) use of church

institutions for public functions; and (6) restriction of

political participation to members of the established

church.” Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I; Establish-

ment of Religion, 44 WM. & Mary L. Rev. 2105, 2131

(2003); accord Waiz, 397 U.S. at 668 (“To the men who

wrote the Religion Clauses of the First Amendment,

the ‘establishment’ of a religion connoted sponsorship,

financial support, and active involvement of the

sovereign in religious activity.”).

Religious exemptions were historically a protec-

tion against the oppressive coercion of established

churches. See Douglas Laycock, Regulatory Exemp-

tions of Religious Behavior and the Original Under-

standing of the Establishment Clause, 81 NOTRE DAME

L. Rev. 1793, 1796 (2006). “The established church

34

had no need for exemptions, because its teachings

were in accord with government policy. Exemptions

protect minority religions, and they emerged only

in the wake of toleration of dissenting worship.” Jd.

Exempting religious colleges, sacred orders, and theo-

logical seminaries from the strictures of modern reg-

ulation is worlds apart from Madison’s fight against

taxes to support ministers. See James Madison, Me-

morial and Remonstrance Against Religious Assess-

ments, in JAMES MADISON: WRITINGS 29 (Jack N.

Rakove ed., 1999). RFRA embodies sensitivity toward

minority or unpopular viewpoints — not a regime of

authoritarian coercion.

III. An Establishment Clause Rule Against Third-

Party Harm Would Nullify Other Exemptions

that Accommodate Religious Exercise.

Finally, the Government’s insistence on treating

third-party harm as a categorical bar on religious

exemptions is a principle with no logical stopping

point. Virtually any religious exemption excuses a re-

ligious believer or organization from complying with a

law enacted to benefit someone. If the mere loss of

that benefit is enough to defeat a claim for religious

exemption, few religious exemptions would survive.

Petitioners’ claims under RFRA would summarily

fail. Any “minor added steps,” Priests for Life, 772

F.3d at 265, of obtaining contraceptives through some

program outside of employee health plans — on the

health benefits exchange, for instance — would, by the

35

Government’s reasoning, discourage at least em-

ployees from receiving covered contraception. And

the prospect of that loss, however minor or unin-

tended, would be sufficient to defeat petitioners’

RFRA claims.

The force of that logic is sweeping. Once un-

leashed, the Government’s third-party-harm rule will

not be confined to RFRA —- especially if the test of

validity under the Establishment Clause becomes

whether a religious exemption would “detrimentally

affect others who do not share [the claimant’s] belief.”

Holt, 135 S.Ct. at 867 (Ginsburg, J., concurring);

accord Hobby Lobby, 134 S. Ct. at 2802 n.25 (Gins-

burg, J., dissenting) (“[T]he government’s license to

grant religion-based exemptions from generally ap-

plicable laws is constrained by the Establishment

Clause.”). By the same logic, other federal laws lifting

legal burdens on religious practice would be crippled

if not nullified. RLUIPA follows the same legal stan-

dard that animates RFRA. See 42 U.S.C. § 2000cc(a1).

Although requiring a state prison to let a Muslim

prisoner grow a short beard does not affect anyone

else, Holt, 135 S.Ct. at 867 (Ginsburg, J., concur-

ring), requiring it to provide kosher food for Jewish

inmates may come at the expense of better quality

food for the general inmate population. Applying the

land use portions of RLUIPA also has detrimental

results for local residents who must tolerate the con-

struction of new religious buildings, with accompany-

ing traffic and noise, at the expense of their formerly

quiet neighborhoods. The Church Amendment, 42

36

U.S.C. § 300a-7(cX1), which entitles physicians with

religious or moral objections not to perform abortions,

reduces the number of available physicians. Title VII's

exemption for religious employers no doubt places

third parties at a disadvantage by eliminating a

cause of action for employment discrimination. 42

U.S.C. § 2000e-1(a). On the same reasoning, religious

exemptions from the Fair Housing Act, 42 U.S.C.

§ 3607, Title IX of the Educational Amendments of

1972, 20 U.S.C. § 1681(3), and the Americans with

Disabilities Act, 42 U.S.C. § 12187, would be equally

vulnerable.’

Taking a scythe to every religious exemption in

federal, state, and local law would not be the only

consequence of adopting and extending the Govern-

ment’s third-party-harm rule. It would cast doubt on

the autonomy of religious organizations to select their

own leaders — a proposition that recently commanded

the Court’s unanimous support. See Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. EEOC, 132

S. Ct. 694 (2012). For if religious freedom must give

way whenever it makes a non-claimant worse off,

surely a church school has no business dismissing a

commissioned minister for threatening to bring a

lawsuit. See id. at 700.

” Religious exemptions under state law would be subject to

the same analysis. See, e.g., Conn. Gen. Stat. § 52-571b (state

RFRA); Fla. Stat. § 761.01 (same); 775 Ill. Comp. Stat. 35/1 et

seq. (same).

37

Elevating third-party harm as a categorical bar

on religious exemptions could reverse the outcomes of

all the Court’s religious exemption decisions. Amos

would be questionable because it disregarded the

effect on church employees of allowing a religious

organization to discriminate among employees based

on religion. Cutter could not justify placing religion

ahead of other values, to the detriment of non-

religious inmates. Walz’s affirmation of tax-exempt

status for churches would founder. Zorach could not

permit released time for schoolchildren to pursue re-

ligious education during the school day, given the

possible detriment to other students from the periodic

absence of religious pupils. Both Gillette and The

Selective Draft Law Cases would be seen as having

prejudiced the uniform application of national con-

scription; for every conscientious objector, another

unwilling soldier had to be enlisted into military

service, with the risk of injury or death.

The Government’s third-party-harm rule, in short,

carries broad and serious implications. Pressed to its

logical limit, that rule would overturn venerable pro-

visions of federal law, undermine principles central to

the Religion Clauses of the First Amendment long

thought to be rare points of consensus, and reverse

numerous decisions issued over decades. None of

these results can be defended. Religious exemptions

like RFRA are consistent with the Establishment

Clause. See Lynch v. Donnelly, 465 U.S. 668, 673

(1984) (The First Amendment “affirmatively mandates

accommodation, not merely tolerance, of all religions,

38

and forbids hostility toward any.”) (citations omitted).

But they could be rendered worthless if the Govern-

ment’s third-party-harm rule is adopted as a categori-

cal bar on relief under RFRA. Nullifying RFRA and

the religious exemptions it resembles would gravely

diminish religious freedom and “deny a national

heritage with roots in the Revolution itself.” Waiz,

397 U.S. at 673.

¢

CONCLUSION

The judgments of the courts of appeals should be

reversed.

Respectfully submitted,

ALEXANDER DUSHKU

R. SHAWN GUNNARSON

Counsel of Record

JUSTIN W STARR

KIRTON McCONKIE

1800 World Trade Center

60 E. South Temple Street

Salt Lake City, Utah 84111

(801) 328-3600

sgunnarson@kmclaw.com

January 11, 2016

la

APPENDIX

INDIVIDUAL STATEMENTS OF INTEREST

The National Association of Evangelicals is

the largest network of evangelical churches, denomi-

nations, colleges, and independent ministries in the

United States. It serves 40 member denominations,

representing 45,000 local churches, as well as numer-

ous evangelical associations, organizations, universi-

ties, seminaries, social-service providers, and millions

of individual Christians. NAE serves as the collective

voice of evangelical churches, as well as other church-

related and independent religious ministries.

NAE believes that religious freedom makes sense

only on the premise that God exists, and that God’s

character and personal nature are such as to give rise

to human duties that are prior and superior in obliga-

tion to the commands of civil society. NAE also holds

that religious freedom is God-given, and therefore the

civil government does not create such freedom but is

charged to protect it. It is grateful for the American

legal tradition of church-state relations and religious

liberty, and believes that this constitutional and ju-

risprudential history should be honored, nurtured,

taught, and maintained.

The Church of Jesus Christ of Latter-day

Saints is a Christian denomination with 15 million

members worldwide. Religious liberty is a fundamen-

tal Church doctrine: “We claim the privilege of wor-

shiping Almighty God according to the dictates of our

own conscience, and allow all men the same privilege,

2a

let them worship how, where, or what they may.” Ar-

ticle of Faith 11. Accordingly, in coalition with many

other faith communities, the Church was signifi-

cantly involved in drafting and advocating passage of

the Religious Freedom Restoration Act. It was also

involved, again with many others, in the effort to pass

the Religious Liberty Protection Act and in the ul-

timate passage of the Religious Land Use and In-

stitutionalized Persons Act. Laws like these, with

protections for the free exercise of religion, are vital

to the Church and its religious mission.

The General Council of the Assemblies of God in

the United States of America, also known as the As-

semblies of God USA (AG), is a Pentecostal Chris-

tian denomination in the United States founded in

1914. There are 12,897 AG churches in the U.S. with

over 3 million members and adherents. It was ranked

the seventh largest denomination in the United

States in 2013. The AG is associated with sixteen

institutions of higher education. The AG is the U.S.

member of the World Assemblies of God Fellow-

ship, the world’s fourth largest Christian community.

There are more than 67 million Assemblies of God

members worldwide, making the Assemblies of God

the world’s largest Pentecostal denomination.

The General Council of the Assemblies of God is

deeply concerned that the Government’s interpre-

tation of RFRA is unduly narrow and contrary to

congressional intent, and substantially threatens the

most fundamental religious beliefs of many relig-

ious organizations, including many of its affiliated

3a

institutions. The General Council of the Assemblies of

God, on behalf of its many churches, schools, and

other affiliated institutions, urges the broadest con-

struction of RFRA to ensure that the protection of re-

ligious exercise is given the primacy it is accorded by

the Bill of Rights.

The Sisters of St. Francis of Perpetual Ado-

ration is a Catholic women’s religious community

located in Mishawaka, Indiana. We instruct students

of all faiths in Catholic institutions at every level,

elementary through post-secondary, and the Commu-

nity sponsors the University of St. Francis in Fort

Wayne, Indiana. In healthcare, the Community spon-

sors Franciscan Alliance, one of the largest Catholic

nonprofit health systems in the Midwest. It receives 4

million outpatient visits and 76,000 inpatient admis-

sions annually. Franciscan Alliance has 18,000 em-

ployees and is committed to providing service to all,

regardless of ability to pay, ethnic background, or

religious affiliation. Each year Franciscan Alliance

contributes $471 million of community benefits, in-

cluding charity care, unpaid costs of Medicaid and

Medicare, community services, and public programs.

Our hospitals, schools, and other facilities and

our service in those and other Catholic institutions

are outward manifestations of the prayer and wor-

ship central to our lives. Witnessing to the dignity of

each human life is intrinsic to our mission of service

to all people, and this witness is undermined by

laws forcing us to provide access to services that do

not uphold the sacredness of all life. That conviction

4a

explains why we have chosen to participate as an

amicus and why the Franciscan Alliance and Univer-

sity of Saint Francis are parties in a case challenging

the same HHS regulations at issue here. See Diocese

of Fort Wayne-South Bend, Inc. v. Burwell, Nos. 14-

1430 & 14-1431 (7th Cir. Sep. 4, 2015).

Colorado Christian University is an evangeli-

cal Christian college located in Lakewood Colorado

that serves over 6,000 traditional and adult students.

The first two of our strategic objectives are: (1) Honor

Christ and share the love of Christ on campus and

around the world; and (2) Teach students to trust the

Bible, lead holy lives, and be evangelists. We firmly

believe that religious freedom is the most fundamen-

tal right guaranteed by the Bill of Rights and that

RFRA was enacted to prevent the kind of government

overreaching found in this case.