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

Nos. 14-1418, 14-1453, 14-1505, 15-35.

15-105, 15-119, 15-191

IN THE

Supreme Court of the United States

DAvip A. ZUBIK, ET AL.

Petitioners,

Vv.

SYLVIA BURWELL, ET AL.,

Respondents.

On Writ of Certiorari

to the United States Courts of Appeals

for the Third, Fifth, Tenth, and DC Circuits

BRIEF OF AMICI CURIAE SCHOLARS OF

RELIGIOUS LIBERTY SARAH BARRINGER

GORDON, R. KENT GREENAWALT, MARTIN S.

LEDERMAN, IRA C. LUPU, AND ROBERT W.

TUTTLE IN SUPPORT OF RESPONDENTS

Tajinder Singh Martin S. Lederman

GOLDSTEIN & RUSSELL,P.C. Counsel of Record

7476 Wisconsin Ave. GEORGETOWN UNIVERSITY

Suite 850 LAW CENTER

Bethesda, MD 20814 600 New Jersey Ave., NW

Washington, DC 20001

(202) 662-9937

msl46@law.georgetown.edu

iene ieee meee

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D. C. 20002

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ...................cccccssssssesseseeees

BRIEF OF AMICI CURIAE......00..........ccccccceeesseeeeeees

gS

INTRODUCTION AND SUMMARY OF

IIE Cinitstccdenntctinnesinenisnenemndeninininnsnnssnennes

I. RFRA restores the “compelling

interest”/“least restrictive means” test this

Court applied to Free Exercise challenges to

generally applicable laws in the three

decades before Employment Division v.

Sal Sictichsdideleiehetantiieibedanaetdemnaiananantddadianigiiiinbiddininidanss

II. RFRA does not require the government to

adopt alternative means that would require

additional legislative appropriations, impose

harms on third parties, or otherwise

materially undermine the government’s

I iccecrtienteninniinninnninteinincsdiitedineninin

III. The challenged accommodation satisfies

RFRA’s “compelling interest”/“least

we

13

yh 30

TT seisinncideinneinseniecnvnpatatnaneninnmnniiitinnee ae

rf

TABLE OF AUTHORITIES

Cases

Ashcroft v. ACLU,

ee I SIE... ccs sinesennnsentonnsannssonsonsste 14, 32

Barnes v. Glen Theatre, Inc.,

a a a ne ae 15

Bob Jones Univ. v. United States,

Se EE EI isintncscosniacncsdsdnsniecsentinntennes passim

Bowen v. Roy,

EE ane ee mee ee 12

Braunfeld v. Brown,

366 U.S. 599 (1961).................cccssesssssssssseseeees passim

Brown v. Entm’t Merchants Ass’n,

4 Seren 14, 34

Burwell v. Hobby Lobby Stores, Inc.,

Be a es SE Ge ctesvcncccecensvccccncscceseseosess passim

Catholic Charities of Sacramento, Inc. v.

Superior Court,

te | 4 see 31, 34, 35

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah,

I 14, 16

City of Boerne v. Flores,

Be WS Ce GIT Prccesscccsccccccscsesnscccsces 10, 13, 14, 15

Cutter v. Wilkinson,

I i esiiaaneligelanaidl 25, 35

- Employment Division v. Smith,

es Ce crcittentacensccscccsessscneeetescesens passim

Estate of Thornton v. Caldor, Inc.,

nN sa atedeneliimagiililll 24

ili

Fisher v. Univ. of Tex. at Austin,

I incr nineinncnsedimounibianinnin 14

Gallagher v. Crown Kosher Super Mkt.,

I an cencaniennbiiniiie 25

Goldman v. Weinberger,

Re cee ane ar 9

Gonzales v. O Centro Espirita Beneficente Uniao

do Vegetal,

I aa ceidciaerenpttalciataesieeiiieis 14, 21

Hernandez v. Commissioner,

Tee Ne ree 25

Hobbie v. Unemployment Appeals Comm’n of

Fla.,

I ici ctalaideantecaataanaiiiabis 14

Holt v. Hobbs,

ee ie Eres Se GI Dicccsnscncessncccscocceseccens 4, 20, 21, 29

Jimmy Swaggart Ministries v. Bd. of

Equalization of Cal.,

i emcimaiae 25

McDaniel v. Paty,

I a ieibaeieends 16

Newman v. Piggie Park Enters.,

Ne i cinscncscdpuscnienciesnannensvnnsiin 25, 27

O’Lone v. Estate of Shabazz,

a eR 9

Otten v. Baltimore & Ohio R. Co.,

UII, TINIE incscinnscvccsedncanconsesconsescsvetes 24

Roberts v. United States Jaycees,

a tai cesinedeindonsennbinine 15

Sherbert v. Verner,

Se es cccnccsinnnscisinerniniaisiasennbaavans passim

iv

Thomas v. Review Board,

| S| Ener 7,11, 26

Tony & Susan Alamo Found. v. Sec’y of Labor,

Be Ts iccsicsstecnsnngencsntensuniciiandiontinaie 25, 29

United States v. Lee,

onic icccitripinieaiienteiinnaninniicinien passim

United States v. O’Brien,

ER ero a 15

United States v. Playboy Entm'’t Grp.,

Ey TTI ioc ctninncemisoccstednietonentaiaen 14, 32, 35

Wisconsin v. Yoder,

Es ST iccteinstudeiiisinscniisindibashanseninns passim

Statutes

Religious Freedom Restoration Act, 42 U.S.C.

i ai irisinsninineibananicintasonn passim

Fe rs Oe eR ecccccccsttitecscccccensescevenscees 5, 30

Oe a I ice ictiiaiicntminatinnenans 6,11

ee I raenictsschaiscnindendnctnnnsadonaeta 1,6

Ge ae © ED secvcscccccccccsscccccsscccseseceseses 1

Religious Land Use and Institutionalized

Persons Act of 2000, 42 §§ U.S.C. 2000cc, et

SETI dainisipiadinthbinnivdaibunsenindamsennbedieninienammnanemvninnnebinias 3

I i eieebadlial 33

Pub. L. 100-647, tit. VIII, § 8007(a)(1), 102 Stat.

3781, codified at 26 U.S.C. § 3127 (1988) ............. 28

Other Authorities

137 Cong. Rec. 17836 (1991) ..................sccccccssesseee 9, 22

139 Comm. Rec. BE4IG (1GBS) .........ccccccccesccccccescossecsees 10

139 Cong. Rec. 27239-41 (1993) ...................cccsseeeeeees 10

Vv

139 Cong. Rec. H2358 (daily ed. May 11, 1993).....7, 8

David M. Ackerman, The Religious Freedom

Restoration Act and The Religious Freedom

Act: A Legal Analysis (Cong. Research Serv.

Report 92-366A, Apr. 17, 1992)..................::c eee 12

BAPTIST JOINT COMMITTEE FOR RELIGIOUS

LIBERTY, THE RELIGIOUS FREEDOM

RESTORATION ACT: 20 YEARS OF PROTECTING

OUR FIRST FREEDOM (2014) .................00.ccceceeeeeeeceeee 6

Kent Greenawalt, Hobby Lobby: Jts Flawed

Interpretive Techniques and Standards of

Application, 115 COLUM. L. REV. SIDEBAR 153

KENT GREENAWALT, RELIGION AND THE

CONSTITUTION: FREE EXERCISE AND FAIRNESS

SITE TR Sree Pe IEF <a ee vn a DN COE aera 20

H.R. Rep. No. 103-88 (1993)................ccccccceeeeees passim

Douglas Laycock, The Religious Exemption

Debate, 11 RUTGERS J. L. & RELIG. 139 (2009)...... 30

Douglas Laycock & Oliver S. Thomas,

Interpreting the Religious Freedom

Restoration Act, 73 TEX. L. REV. 209 (1994)........ 7,8

Martin S. Lederman, Reconstructing RFRA: The

Contested Legacy of Religious Freedom

Restoration, 125 Yale L.J. F. (forthcoming

ical ahaha aiden iaracacinahdasi 27, 33

IRA C. LUPU & ROBERT W. TUTTLE, SECULAR

GOVERNMENT, RELIGIOUS PEOPLE (2014).............. 23

vi

Religious Freedom Restoration Act of 1991:

Hearings on H.R. 2797 before the Subcomm.

on Civil and Constitutional Rights of the

House Committee on the Judiciary, 102d

Sig See I CI cnceesccccccninesnsecemninverssonsccsreseenes 12

Be BR Bet BES CID vccccecececcccccosccccevscescscoseeses 7,9

The Religious Freedom Restoration Act: Hearing

on S. 2969 Before the S. Comm. on the

Judiciary, 102d Cong., 2d Sess. (1992)............. 7,12

BRIEF OF AMICI CURIAE'

Like the United States, although we do not

question the sincerity of petitioners’ religious beliefs,

we have doubts about whether, as a matter of law, the

agencies’ accommodation for religious nonprofit

organizations imposes a _ substantial burden on

petitioners’ exercise of religion. See Brief for

Respondents (U.S. Br.) at 32-53. Nevertheless, the

focus of this brief is the provision of the Religious

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

(RFRA), stating that the federal government may

substantially burden a person’s exercise of religion if it

demonstrates that application of the burden to the

religious objector “is the least restrictive means of

furthering” a compelling governmental interest. Jd.

§ 2000bb-1(b)(2).

INTEREST OF AMICI

Amici are scholars who for many years have

taught and written on the subject of constitutional and

statutory protection for religious liberty.

Sarah Barringer Gordon is the Arlin M. Adams

Professor of Constitutional Law and Professor of

History at the University of Pennsylvania Law School.

R. Kent Greenawalt is a University Professor at

Columbia Law School.

Martin S. Lederman is Associate Professor of Law

at the Georgetown University Law Center.

' The parties have filed blanket consent letters for all amicus

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

part, and no person other than amici and their counsel made a

monetary contribution intended to fund this brief.

2

Ira C. Lupu is the F. Elwood & Eleanor Davis

Professor Emeritus of Law at the George Washington

University Law School.

Robert W. Tuttle is the David R. and Sherry

Kirschner Berz Research Professor of Law and

Religion at the George Washington University Law

School.”

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court has invoked “least restrictive means”

as a legal term of art with respect to an array of

different sorts of constitutional claims, and its

application of a “least restrictive means” test has

varied depending on context. In cases involving laws

that target religious conduct for disfavored treatment,

explicitly regulate the content of communications, or

discriminate on the basis of race, the Court has

vigorously inquired into whether the government could

have advanced its interests sufficiently by enacting

alternative, constitutionally unobjectionable

legislation.

By contrast, where the claim is that neutral

legislation imposes incidental burdens on rights, the

Court has sometimes applied a different sort of

“compelling interest’/“least restrictive means” inquiry

to laws that are facially constitutional. In those

cases—including the Court’s Free Exercise Clause

jurisprudence in the three decades _ preceding

Employment Division v. Smith, 494 U.S. 872 (1990)—

2 Institutional affiliations are listed for identification

purposes only.

3

the Court’s methodology has been markedly different,

and considerably less demanding.

Congress was well aware of this Court’s pre-Smith

Free Exercise jurisprudence of “least restrictive

means” when it deliberated upon RFRA, and it

specifically decided to “restore,” as a matter of

statutory law, the same “least restrictive means” test

the Court had applied in the 30 years preceding Smith.

Indeed, that limited scope of restoration was vital to

RFRA’s passage. In order to break an impasse that

had prevented the legislation from going forward, the

bill’s lead sponsors agreed to add compromise

language to the committee reports, making it

“absolutely clear” that “the bill does not expand,

contract or alter the ability of a claimant to obtain

relief in a manner consistent with free exercise

jurisprudence, including Supreme Court

jurisprudence, under the compelling governmental |

interest test prior to Smith.” H.R. Rep. No. 103-88, at 8

(1993).

The Court’s more pragmatic, and less rigid,

variation of heightened scrutiny in the pre-Smith Free

Exercise cases was not toothless. The Court required

the government to demonstrate that its compelling

interests would in fact be furthered by application of

the law in question to the particular religious objectors

and those similarly situated, and to explain why

obvious and available alternatives might not equally

advance the government’s interests. The Court has

continued to insist upon such showings in more recent

cases involving the same “least restrictive means” test

in RFRA and in the Religious Land Use and

Institutionalized Persons Act of 2000, 42 U.S.C.

§§ 2000cc, et seg. (RLUIPA). See Burwell v. Hobby

4

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

Hobbs, 135 S. Ct. 853 (2015). When plaintiffs

demonstrate that a generally applicable law will

substantially burden their religious exercise, and

administrators can accommodate the objectors without

harm to the government’s compelling interests and

without imposing burdens on third parties, RFRA

requires such accommodation.

In a telling series of decisions in the 1980's,

however, Free Exercise claimants did not prevail,

because the exemptions they sought from facially

constitutional laws would have impeded the state’s

pursuit of compelling interests, and their proposed

alternative means would have required additional

legislation, imposed material costs on other persons, or

otherwise impeded furtherance of the government’s

compelling interests. Because RFRA incorporates and

restores all of the Court’s pre-Smith jurisprudence,

including such applications of the “compelling

interest’/“least restrictive means” test, this analysis

must be applied to RFRA claims, too.

In the cases under review here, the agencies have

already made any accommodation RFRA arguably

commands. Most of petitioners’ proposed alternatives

would require Congress to enact new appropriations

statutes to mitigate the harms to the government or

private individuals that the requested religious

exemptions would cause. RFRA, however, does not in

effect require future Congresses to enact laws to set off

the costs of religious accommodations whenever a new

religious objector comes forward and demonstrates a

substantial burden. Therefore the mere prospect of

such future congressional action cannot itself be

deemed a “less restrictive” means under RFRA.

5

Moreover, as the government demonstrates, each

of petitioners’ proposed alternatives would be less

effective than the challenged accommodation in

furthering the government’s compelling interests in

reducing unintended pregnancies and ensuring that

women have equal access to needed health care. RFRA

therefore does not require the government to resort to

them. Petitioners’ reliance on more restrictive

doctrinal rules, derived from the very different context

in which the Court assesses the facial validity of laws

that restrict speech on the basis of content, are

misplaced in the context of RFRA claims for

exemptions from valid, generally applicable laws.

ARGUMENT

I. RFRA Restores The “Compelling

Interest”/Least Restrictive Means” Test

This Court Applied To Free Exercise

Challenges To Generally Applicable

Laws In The Three Decades Before

Employment Division v. Smith.

1. As the title of the statute confirms, Congress

enacted the Religious Freedom Restoration Act of 1993

in order to restore the Free Exercise test this Court

had applied in the context of generally applicable laws

before its 1990 decision in Smith. Congress expressly

found that “prior Federal court rulings,” including

Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin

v. Yoder, 406 U.S. 205 (1972), set forth a “workable

test for striking sensible balances between religious

liberty and competing prior governmental interests.”

42 U.S.C. § 2000bb(aX(5). Congress’s first declared

purpose in RFRA is thus “to restore the compelling

6

interest test as set forth” in those decisions. Jd.

§ 2000bb(b)(1).

To effectuate that purpose, RFRA provides that

the federal government may substantially burden a

person’s exercise of religion “only if it demonstrates

that application of the burden to the person—(1) is in

furtherance of a compelling governmental interest;

and (2) is the least restrictive means of furthering that

compelling governmental interest.” Jd. § 2000bb-1(b).

There was broad consensus among members of

Congress, and a remarkably broad coalition of 66

religious and civil rights organizations, that Congress

should enact legislation to respond to the Smith

decision by restoring the pre-Smith jurisprudence of

religious liberty.* Many legislators, however, including

important sponsors, shared the concerns of some

religious organizations within the coalition—including

most significantly the U.S. Conference of Catholic

Bishops—that the legislation might be construed to

require religion-based exemptions to abortion

restrictions.

The abortion question dominated the legislative

hearings and debates about RFRA. See, e.g., S. Rep.

° See “Dear Senator” letter from Oliver S. Thomas, Oct. 20,

1993, in BAPTIST JOINT COMMITTEE FOR RELIGIOUS LIBERTY, THE

RELIGIOUS FREEDOM RESTORATION ACT: 20 YEARS OF PROTECTING

OuR FIRST FREEDOM, at 6 (2014), http//bjconline.org/wp-

content/uploads/20 14/04/RFRA-Book-FINAL.pdf (listing

organizations in the “Coalition for the Free Exercise of Religion,”

ranging from the Christian Legal Society, Episcopal Church, and

National Association of Evangelicals to the American Civil

Liberties Union, American Humanist Association, and Americans

United for Separation of Church and State).

7

No. 103-111. at 12 (1993); The Religious Freedom

Restoration Act: Hearing on S. 2969 Before the S.

Comm. on the Judiciary, 102d Cong., 2d Sess. 100,

106-110 (1992) (“1992 Senate Hearing”) (testimony

and statement of Mark E. Chopko, General Counsel,

U.S. Catholic Conference); id. at 203-40 (testimony

and statement of James Bopp, Jr., General Counsel,

National Right to Life Committee, Inc.).; Douglas

Laycock & Oliver S. Thomas, Interpreting the Religious

Freedom Restoration Act, 73 TEX. L. REV. 209, 231-38

(1994). The concerns were so pronounced, and

seemingly intractable, that leading House Republican

sponsors Paul Henry and Henry Hyde withdrew their

support for the bill. Jd. at 237. As Representative Hyde

would later recount on the House floor, the standard

articulated in the bill “was of particular concern to me

in the area of abortion rights.” 139 Cong. Rec. H2358

(daily ed. May 11, 1993). Under settled pre-Smith law,

Hyde explained, there was no prospect of successful

RFRA claims for exemptions to abortion restrictions;

yet “[a] major issue of contention in the 102d Congress

was whether the bill was a true restoration of the law

as it existed prior to Smith or whether it sought to

impose a more stringent statutory standard.” Jd.

Proponents accordingly changed the bill, prior to

its reintroduction in the 103d Congress, to “make clear

that the statutory standard of the Religious Freedom

Restoration Act is the same free exercise standard that

was applied by the U.S. Supreme Court prior to

Smith.” Id. As Representative Hyde recounted, in

explaining his renewed support of the legislation, “the

Religious Freedom Act is not seeking to impose a new

and strengthened compelling State interest standard,

but is seeking to replicate, by statute, the same free

8

exercise test that was applied prior to Smith.” Id. In

particular, “(t]he bill now clearly imposes a statutory

standard that is to be interpreted as incorporating all

Federal court cases prior to Smith.” Id.‘ In the House

Report, Hyde and _ fellow’ leading pro-life

Representatives were thus able to write (and no other

members suggested otherwise) that “the purpose of the

statute is to ‘turn the clock back’ to the day before

Smith was decided.” H.R. Rep. No. 103-88, at 15

(statement of Reps. Hyde, Sensenbrenner, McCollum,

Coble, Canady, Inglis, and Goodlatte).

The bill’s bipartisan sponsors made sure to

confirm this crucial understanding. They added

carefully negotiated “compromise language” to the

committee reports to guarantee that, in almost every

material respect, RFRA would do no more than

“restore” the law as it had existed before Smith.

Laycock & Thomas, supra, 73 TEX. L. REV. at 237. The

House and Senate reports thus specify that it is

“absolutely clear [RFRA] does not expand, contract or

alter the ability of a claimant to obtain relief in a

manner consistent with free exercise jurisprudence,

including Supreme Court jurisprudence, under the

compelling governmental interest test prior to Smith.”

H.R. Rep. No. 103-88, at 8; see also S. Rep. No. 103-

‘ In particular, the formal legislative findings were rewritten

to declare that “the compelling interest test as set forth in prior

federal court rulings is a workable test for striking sensible

balances between religious liberty and competing prior

governmental interests.” 42 U.S.C. § 2000bb(aX5) (emphasis

added).

9

111, at 12 (1993) (materially indistinguishable

language).°

It made perfect sense for RFRA’s sponsors to

confirm that the Act was designed to “turn the clock

back’ to the day before Smith was decided.” H.R. Rep.

No. 103-88, at 15 (statement of Reps. Hyde, et al.).

With one exception not pertinent here, see supra note

5, members of Congress had not expressed any doubts

about the propriety of the Court’s earlier decisions,

including the series of pro-government decisions in the

decade or so before Smith. Those decisions, unlike

Smith, did not prompt any “restoration” movement.

Thus, the Senate Report accurately stated that “the

purpose of this act is only to overturn the Supreme

Court’s decision in Smith,” S. Rep. No. 103-111, at 12

(emphasis added)—rather than to challenge the

manner in which the Court had applied its heightened

scrutiny test before Smith. Indeed, the lead House

sponsor went so far as to say that the legislation would

“simply restore the legal standard for protecting

religious freedom that worked so well for more than a

generation.” 137 Cong. Rec. 17836 (1991) (statement of

Rep. Solarz) (emphasis added).

The sponsors’ amendments to the statute and the

committee reports did the trick: The 103d Congress

5 There was one exception to this genera) “restorative”

design. This Court had held that the government was entitled to a

more deferential standard of review in certain government-

controlled “enclaves.” See Goldman v. Weinberger, 475 U.S. 503

(1986) (armed forces); O’Lone v. Estate of Shabazz, 482 U.S. 342

(1987) (prisons). It was Congress’s intent that RFRA’s exemption

standards are to apply in these enclaves, as well. See S. Rep. No.

103-111, at 9-12; H.R. Rep. No. 103-88, at 7-8.

10

promptly enacted RFRA with almost no dissent, and

with the support of the extraordinarily broad and

diverse Coalition for the Free Exercise of Religion (see

supra note 3). Such broad agreement among such

diverse constituencies would not have been possible

absent the express assurance that RFRA did not

prescribe a sweeping new test that might significantly

undermine the government’s authority to enforce

generally applicable laws.

2. In Hobby Lobby, this Court remarked, without

deciding, that perhaps “RFRA did more than merely

restore the balancing test used in the Sherbert line of

[Free Exercise] cases; it provided even broader

protection for religious liberty than was available

under those decisions.” 134 S. Ct. at 2761 n.3; see also

id. at 2767 (stating that “[flor present purposes, it is

unnecessary to adjudicate” whether RFRA’s “least

restrictive means” test “went beyond what was

required by our pre-Smith decisions”). This suggestion

was, in turn, based upon a dictum in City of Boerne v.

Flores, 521 U.S. 507, 509 (1997), in which the Court

assumed that RFRA’s “least restrictive means”

requirement “was not used in the _ pre-Smith

jurisprudence RFRA purported to codify.” That dictum,

however—most likely the product of an anomaly in the

City of Boerne briefing’—was not an accurate

® The House approved RFRA by unanimous voice vote, and

only three Senators opposed the legislation. See 139 Cong. Rec.

26416 (1993) (Senate); 139 Cong. Rec. 27239-41 (1993) (House).

’ The petitioner argued that “the least restrictive means test

has not been a staple of [the Court’s pre-Smith] free exercise

doctrine,” and was “a virtual novelty in the free exercise arena.”

Brief for Petitioner in City of Boerne v. Flores at 17, 22; see also

11

characterization of RFRA or of this Court’s pre-Smith

jurisprudence.

In various forms, a version of the “least restrictive

means” test was part of this Court’s constitutional

inquiry in Free Exercise cases before Smith. In

Thomas v. Review Board, 450 U.S. 707, 718 (1981), for

instance, the Court wrote that “[t]he state may justify

an inroad on religious liberty by showing that it is the

least restrictive means of achieving some compelling

state interest.” The Court used similar expressions of

the constitutional test in cases both before and after

Thomas, including in Sherbert v. Verner, which RFRA

expressly references (42 U.S.C. § 2000bb(b)(1)).®

Indeed, by the time of Smith, that formulation had

id. at 22 (“[Tlhe most oppressive aspect of RFRA for

governments—the least restrictive means test—is a virtual

novelty in the free exercise arena”). The issue was not central to

the case, and so neither the respondent nor the United States

contested this erroneous characterization.

8 See Sherbert, 374 U.S. at 407 (“[I)t would plainly be

incumbent upon the [government] to demonstrate that no

alternative forms of regulation would combat [the problem)

without infringing First Amendment rights.”); Braunfeld v.

Brown, 366 U.S. 599, 607 (1961) (plurality opinion) (“[I)f the State

regulates conduct by enacting a general law within its power, the

purpose and effect of which is to advance the State’s secular

goals, the statute is valid despite its indirect burden on religious

observance unless the State may accomplish its purpose by means

which do not impose such a burden.”) (emphasis added); Bob

Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (“The

interests asserted by petitioners cannot be accommodated with

that compelling governmental interest, .. . and no ‘less restrictive

means, .. . are available to achieve the governmental interest.”)

(internal citations omitted).

12

become so well-established that Justice O’Connor

described the Court as having “consistently” applied a

“least restrictive means” test. Smith, 494 U.S. at 899

(O’Connor, J., concurring in the judgment); see also

Bowen v. Roy, 476 U.S. 693, 728 (1986) (O’Connor, J.,

concurring in part and dissenting in part); Smith, 494

U.S. at 907 (Blackmun, J., dissenting) (describing it as

“a consistent and exacting standard” that the Court

had “over the years painstakingly . . . developed”).

The Congress that enacted RFRA was well aware

that “least restrictive means” was a judicial term of art

this Court had applied in its pre-Smith cases. During

the legislative debates, the chief House sponsor, a

leading scholar, and the Congressional Research

Service all informed Congress that the “less restrictive

means” component of RFRA derived from the Court’s

pre-Smith doctrine. See Religious Freedom Restoration

Act of 1991: Hearings on H.R. 2797 before the

Subcomm. on Civil and Constitutional Rights of the

House Committee on the Judiciary, 102d Cong., 2d

Sess. 121 (1993) (written statement of Rep. Solarz); id.

at 342 (statement of Prof. Douglas Laycock); 1992

Senate Hearing, supra, at 78-79 (statement of Prof.

Laycock); David M. Ackerman, The Religious Freedom

Restoration Act and The Religious Freedom Act: A

Legal Analysis 6 (Cong. Research Serv. Report 92-

366A, Apr. 17, 1992). Senator Kennedy, another

principal sponsor, likewise commented that RFRA

“would restore the compelling interest test for

evaluating free exercise claims . . . by establishing a

statutory right that adopts the standards previously

used by the Supreme Court.” 1992 Senate Hearing,

supra, at 2 (1992) (emphasis added).

13

Thus, as the House Report explained, it was “the

Committee’s expectation that the courts will look to

free exercise of religion cases decided prior to Smith

for guidance in determining whether or not ... the

least restrictive means have been employed in

furthering a compelling governmental interest.” H.R.

Rep. No. 103-88, at 6-7.

To be sure, RFRA did not “merely restore[) this

Court’s pre-Smith decisions in ossified form,” such that

a plaintiff cannot prevail unless his claim precisely

tracks one of the Court’s precedents granting an

exemption. Hobby Lobby, 134 S. Ct. at 2773. Congress

plainly intended, however, that courts and officials

should apply RFRA’s “compelling-interest”/ “least

restrictive means” provision in accord with the ways in

which the Court, before Smith, applied that test in

evaluating Free Exercise exemption claims.

Il. RFRA Does Not Require The

Government To Adopt Alternative

Means That Would Require Additional

Legislative Appropriations, Impose

Harms On Third Parties, Or Otherwise

Materially Undermine the

Government’s Compelling Interests.

In City of Boerne, this Court assumed that RFRA’s

“compelling interest’/“least restrictive means” test is

equivalent to the “strict scrutiny” tests this Court has

applied in other familiar constitutional contexts, such

as the scrutiny it uses to evaluate racial classifications

and content-based speech restrictions—“the most

demanding test known to constitutional law,” or, at a

minimum, a test that would result in the “likelihood of

invalidation” of the challenged law. 521 U.S. at 534;

14

see also Hobby Lobby, 134 S. Ct. at 2780

(“exceptionally demanding”) (citing City of Boerne, 521

U.S. at 532).°

It is central to the disposition of this case,

however, to understand that not every test that

employs a “least restrictive means” analysis, or that is

denominated as “strict scrutiny,” is the same.

1. To be sure, in various other settings—most

commonly, where the Court confronts laws that

expressly target religious practice,'® that discriminate

on the basis of race,'' or that restrict speech on the

basis of content'*—the Court has employed a variant of

the “compelling interest”/least restrictive means” test

(or a similar test in which the state is required to

advance its compelling interests in a “narrowly

tailored” fashion) in a manner that is very difficult for

a state to satisfy. Those more strenuous versions of the

test typically ask whether the legislature could have

accomplished its goals by enacting a statute that

avoids direct and _ intentional regulation of

° On at least two other occasions—one in the Free Exercise

context, the other under RFRA—the Court has referred to the

test as a form of “strict scrutiny.” Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006); Hobbie v.

Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 141 (1987).

10 E.g., Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 533 (1993).

! E.g., Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411,

2419 (2013).

2 E.g., Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729,

2738 (2011); Ashcroft v. ACLU, 542 U.S. 656, 665-70 (2004);

United States v. Playboy Entm’t Grp., 529 U.S. 803, 813-25 (2000).

15

constitutionally protected rights. If the answer is “yes,”

then the legislature’s failure to have used such an

alternative statute results in what the Court in City of

Boerne referred to as the “likelihood of invalidation” of

the challenged law. 521 U.S. at 534

Although the Free Exercise test this Court applied

in the thirty years before Smith—and thus the test

Congress “restored” in RFRA and RLUIPA— is couched

in terms similar to that extraordinarily rigorous

version, it works very differently in practice. It is

analogous to forms of heightened scrutiny the Court

has applied to assess other facially unobjectionable

laws ‘at incidentally burden a _ constitutionally

protected interest—for example, antidiscrimination

laws that incidentally restrict the right of “expressive

association,” Roberts v. United States Jaycees, 468 U.S.

609 (1984), and laws regulating conduct (e.g., public

nudity or burning draft cards) that incidentally burden

expressive activity, such as in Barnes v. Glen Theatre,

Inc., 501 U.S. 560 (1991), and United States v. O’Brien,

391 U.S. 367 (1968).

In such cases the Court does often inquire whether

there are “alternative means that would more

precisely and narrowly” advance the government’s

interests, O’Brien, 391 U.S. at 381; see also Barnes,

501 U.S. at 571 (“the incidental restriction on First

Amendment freedom [must] be no greater than is

essential to the furtherance of the governmental

interest”); Roberts, 468 U.S. at 623 (antidiscrimination

law could not be applied to require the Jaycees to

accept women as members unless such an application

of the Act would “serve compelling state interests,

unrelated to the suppression of ideas, that cannot be

achieved through means significantly less restrictive of

16

associational freedoms”). But that inquiry is very

different from the “least restrictive means” or “narrow

tailoring” requirement the Court applies to statutes

that intentionally target constitutionally protected

interests. In cases challenging incidental burdens, the

Court has not asked whether the legislature could

have accomplished its goal by passing a completely

different law. Instead, the Court has inquired whether

the law must yield to an exemption because of its

impact on a constitutionally protected interest. And, as

the Court’s decisions in O’Brien, Barnes and Roberts

attest, the answer to that question is often “no.”

2. A very similar sort of dynamic appears in the

Court’s Free Exercise and RFRA jurisprudence.

Both before and after Smith, for example, this

Court has applied the familiar, most demanding form

of strict scrutiny to declare that laws discriminating

against religion are facially invalid. See McDaniel v.

Paty, 435 U.S. 618 (1978); Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520

(1993).

By contrast, in cases claiming a right to religious

exemptions from generally applicable \laws, the Court’s

inquiry has been far less demanding and more

sensitive to context. Even so, that test has

considerable force, as reflected in the cases in which

this Court has required conferral of religious

exemptions—including the two cases that RFRA

expressly invokes, Sherbert v. Verner and Wisconsin v.

Yoder.

In Sherbert, this Court held that a Seventh Day

Adventist was entitled to unemployment insurance

after losing her job due to her refusal to work on

17

Saturday, her Sabbath. 374 U.S. at 410. South

Carolina law protected other worshippers from being

fired for refusing to work on Sundays, and South

Carolina officials were also authorized to grant

benefits if the claimant showed “good cause” for

refusing to accept “available suitable work” when

offered. Yet those officials denied that Sherbert’s

religious obligation qualified as “good cause.” Id. at

401.

South Carolina argued that giving benefits to

Sherbert might lead to “fraudulent claims by

unscrupulous claimants feigning religious objections to

Saturday work,” which might, in turn, “not only dilute

the unemployment compensation fund but also hinder

the scheduling by employers of necessary Saturday

work.” Jd. at 407. The Court rejected this speculative

contention, not only because it was supported by “no

proof whatever” in the record, id., but also because the

speculative risk was belied by the experience in other

states. At least twenty-two such states had construed

their own “good cause” (or similar) exceptions to allow

benefits to be offered to persons who were physically

available for work but unable to find suitable

employment solely because of a religious prohibition.

Id. at 407 n.7. Those states apparently had been able

to detect or deter any fraudulent, nonreligious claims

that might threaten to dilute their funds or disrupt

work scheduling. Accordingly, it was “incumbent upon

[South Carolina] to demonstrate that no alternative

forms of regulation would combat such abuses without

infringing First Amendment rights,” id. at 407—a

showing that the State failed to make.

Sherbert’s most revealing insight into the proper

application of the Court’s “least restrictive means” test

18

is reflected in the way the Court distinguished

Braunfeld v. Brown, 366 U.S. 599 (1961), the case in

which this Court first inquired into the availability of

alternative means in a Free Exercise case (see supra

note 8). The law at issue in Braunfeld required

businesses to close on Sundays, thereby indirectly

disadvantaging individuals who, for religious reasons,

could not open on Saturdays. As the Sherbert Court

described Braunfeld, there was “a strong state interest

in providing one uniform day of rest for all workers,”

which could only be achieved “by declaring Sunday to

be that day of rest.” 374 U.S. at 408. Although

“[rlequiring exemptions for Sabbatarians” was

“theoretically possible,” it would have “present[ed] an

administrative burden of such magnitude,” or

“afford[ed] the exempted class so great a competitive

advantage, that such a requirement would have

rendered the entire statutory scheme unworkable.” Jd.

at 408-09.

Braunfeld thus rejected an exemption claim

because of the costs it would impose on the

government’s interests, including the interest in

avoiding harm to other private parties. The fact that

the Court in Sherbert embraced Braunfeld’s analysis

in this respect is highly revealing of the nature of the

“least restrictive” or “alternative” means inquiry.

In Yoder, Wisconsin pursued criminal charges

against Amish parents who refused to send their

children to public high schools in compliance with the

state’s compulsory education law. The parents, and the

Amish community more broadly, had determined that

mainstream education beyond grammar school would

undermine the community’s religious teachings; and

testimony showed “that the Amish succeed in

19

preparing their high school age children to be

productive members of the Amish community” by

“learning through doing the skills directly relevant to

their adult roles in the Amish community.” 406 US. at

212.

The Court credited Wisconsin’s compelling

interest in ensuring that minors are prepared to be

self-sufficient and to participate in democratic society,

and acknowledged that “the power of the parent, eve 1

when linked to a free exercise claim, may be subject to

limitation . . . if it appears that parental decisions will

jeopardize the health or safety of the child, or have the

potential for significant social burdens.” Jd. at 233-34.

Even so, the Court concluded that Wisconsin had

failed to demonstrate that an “impediment to [its]

objectives . . . would flow from recognizing the claimed

Amish exemption,” id. at 221, in light of the unique

wey in which that community treated its minors, id. at

223. Indeed, the Court found that the Amish

themselves had demonstrated “the adequacy of their

alternative mode of continuing informal] vocational

education in terms of precisely those overall interests

that the State advances in support of its program of

compulsory high school education.” Jd. at 235. Because

Wisconsin could not show “how its admittedly strong

interest in compulsory education would be adversely

affected by granting an exemption to the Amish,” id. at

236, the Court granted the Free Exercise exemption,

cabined to that particular community.’* Importantly,

'8 In effect, the Court held that the Amish’s own

“alternative” means of advancing the state’s interests rendered

the state incapable of showing that it had a compelling interest in

applying its otherwise legitimate law to that discrete religious

20

the Yoder Court emphasized that this did not mean

the Wisconsin law was facially invalid, the way it

would be if the Court had been applying the sort of

strict scrutiny it uses when evaluating a

discriminatory law: “Nothing we hold is intended to

undermine the general applicability of the State’s

compulsory school-attendance statutes.” Jd. at 236.

The Court’s recent decisions under RFRA and

RLUIPA reflect these lessons of Sherbert, Braunfeld

and Yoder, and shed further light on the demands of

the “compelling interest”/“least restrictive means” test.

In Holt v. Hobbs, a state prisoner sought a

religious exemption under RLUIPA so that he could

grow a %-inch beard. The Arkansas Department of

Correction argued that if guards had to search a

prisoner’s beard for weapons, that would pose a risk to

the physical safety of a guard if a razor or needle was

concealed in the beard. However, as the Court

explained, “that is no less true for searches of hair,

clothing, and %-inch beards [which the officials had

permitted].” 135.8. Ct. at 864. Moreover, the

Department failed to explain why it could not simply

use a readily available “less restrictive alternative of

having the prisoner run a comb through his beard.” Jd.

And, as in Sherbert, the Court held that because many

community. See also 1 KENT GREENAWALT, RELIGION AND THE

CONSTITUTION: FREE EXERCISE AND FAIRNESS 214 (2014) (“(T)he

purpose of this [less restrictive means) component is achieved

implicitly through the compelling interest question itself, which is

properly seen as whether the government has a compelling

interest in applying a law against the claimant and people like

him.”).

21

other jurisdictions had handled the same problem

without impinging upon religious liberty, Arkansas

was required, “at a minimum, [to] offer persuasive

reasons why it believes that it must take a different

course,” rather than using those “less restrictive”

means of avoiding the harm. Jd. at 866. Holt thus

illustrates that if obvious, alternative means of dealing

with the asserted problems are _ available,

administrators must grant the religious exemptions,

unless they can show that doing so would threaten

additional harms to the government’s compelling

interests.

So, too, in Hobby Lobby itself, the Executive

agencies already had adopted a_ workable

accommodation for religious non-profit organizations,

and offered no reason why they did not have the

authority or ability to make the same accommodation

available to similarly situated, closely held for-profit

corporations. 134 S. Ct. at 2782."

These decisions, from 1961 through 2015,

collectively reinforce that the “compelling

4 The Court’s 2006 RFRA decision in O Centro was similar

to Yoder in that the federal government there had failed to

demonstrate that the “particular use at issue” of a controlled

substance—the “circumscribed, sacramental use of hoasca” by a

130-member Christian Spiritist sect—would result in the harms

ordinarily associated with the use of hallucinogens. 546 U.S. at

432 (emphasis added). Indeed, an exception the government had

already recognized for tribal use of peyote in analogous,

circumscribed circumstances showed that the sacramental use of

hallucinogens by the sect would not necessarily result in the

speculative harms to the government’s compelling interests. /d. at

433-35.

22

interest’/‘least restrictive means” test can require

accommodations for religious exercise when those

accommodations do not materially impinge on

compelling governmental interests.

3. Nevertheless, the Court has never applied the

Free Exercise/RFRA/RLUIPA variant of the

“compelling interest’“least restrictive means” test

with remotely the same degree of scrutiny or

skepticism as when the Court confronts a law that

targets constitutionally protected rights or interests.

The Court’s refusal to apply the most rigorous

form of strict scrutiny in Free Exercise challenges to

generally applicable laws is the product of sound

judgment about the best way to protect valued

religious freedoms while maintaining a functioning,

secular government. As the Court recognized in Smith,

if it were to apply strict scrutiny to religious exemption

cases in the same manner as “in the other fields where

it is applied,” then “society . . . would be courting

anarchy” by “open[ing] the prospect” of required

religiows exemptions “from civic obligations of almost

every conceivable kind.” 494 U.S. at 488. That is

precisely why, in its pre-Smith Free Exercise cases,

the Court did not apply the stronger form of “strict

scrutiny” familiar from those “other fields.”

It also explains why Congress designed RFRA to

“restore the legal standard for protecting religious

freedom that worked so well for more than a

generation,” 137 Cong. Rec. 17836 (1991) (remarks of

Rep. Solarz), in a manner that would not “expand,

contract or alter the ability of a claimant to obtain

relief in a manner consistent with . . . Supreme Court

jurisprudence, under the compelling governmental

23

interest test prior to Smith.” H.R. Rep. No. 103-88, at

8. Application of the more rigorous form of strict

scrutiny—the version found in, for example, the

Court’s doctrine regarding content-based speech

restrictions—would create ready opportunities for

religious objectors to evade many generally applicable

laws. That is precisely what RFRA’s sponsors sought

to avoid.

The Court’s treatment of the “substantial burden”

component of RFRA is another reason why it has

adopted a more sensitive, context-specific application

of the “least restrictive means” test. The Court has

taken very seriously the notion that civil authorities

are not competent to second-guess believers about the

nature of their faith. Thus, for example, courts

generally may not probe sincere claims about the

legitimacy or truth of an individual’s particular

religious beliefs. See Hobby Lobby, 134 S. Ct. at 2778.

Such deference may be appropriate, but it also

provides significant advantages to objectors, as well as

incentives for insincere claimants to assert religious

claims,’ and even for sincere religious objectors to

describe their opposition to legal requirements in

terms that would more readily establish a qualifying

“substantial burden.”*®

See IRA C. LuPU & ROBERT W. TUTTLE, SECULAR

GOVERNMENT, RELIGIOUS PEOPLE 227-32 (2014) (discussing such

concerns in the context of the institutionalized persons provision

of RLUIPA).

‘6 See Kent Greenawalt, Hobby Lobby: Its Flawed

Interpretive Techniques and Standards of Application, 115

COLUM. L. REV. SIDEBAR 153, 168-69 (2015).

24

These inevitable risks establish a need for a

counterweight in order to maintain the delicate

balance Congress struck in RFRA. The only plausible

candidate for such a counterweight is to acknowledge

that courts must apply the “least restrictive means”

test in a practical way, with due respect for the

challenges inherent in creating and implementing

exemptions to generally applicable laws. Otherwise,

RFRA would also often inflict significant harms upon

third parties. In certain cases, such third-party harms

would raise serious Establishment Clause concerns. At

a minimum, however, the government has a

compelling interest in avoiding the imposition of such

harms, in light of the “fundamental principle of the

Religion Clauses” that “(t]he 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.” Estate of Thornton v. Caldor,

Inc., 473 U.S. 703, 710 (1985) (quoting Otten v.

Baltimore & Ohio R. Co., 205 F.2d 58, 61 (2d Cir.

1953) (L. Hand, J.)).

The Court has been sensitive to these concerns,

and the consequent need to apply practical reason in

the administration of the “least restrictive means” test.

In particular, both before and after Smith, the Court

has not required the government to adopt alternatives

that would impose harm on third parties; nor has the

Court credited as a less restrictive alternative the

mere possibility that the legislature might enact new

statutes—including additional appropriations—in

order to avoid those third-party harms or to ameliorate

the impact of religious exemptions on other compelling

interests. Most recently, in Hobby Lobby, every Justice

recognized that “cost may be an important factor in

25

the least-restrictive-means analysis,” and that “in

applying RFRA ‘courts must take adequate account of

the burdens a requested accommodation may impose

on nonbeneficiaries.” 134 S. Ct. at 2781 & n.37

(quoting Cutter v. Wilkinson, 544 U.S. 709, 720

(2005)); see also id. at 2786-87 (Kennedy, J.,

concurring) (explaining that the state may not permit

religious exercise to “unduly restrict other persons,

such as employees, in protecting their own interests”

that “the law deems compelling”); id. at 2801

(Ginsburg, J., dissenting).

These same concerns animated the Court’s Free

Exercise jurisprudence in the pre-Smith era, which the

RFRA test is designed to restore. From 1961 to 1990,

the Court rejected most claims for exemptions to

generally applicable laws, even while applying a form

of heightened scrutiny. Many of those cases involved

forms of commercial regulation as to which exemptions

would implicate third-party interests or make claims

on the public fisc, including wage and hour

legislation’; Sunday closing laws'*; tax obligations”;

and antidiscrimination guarantees.” The results in

these cases differed dramatically from cases in which

Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S.

290 (1985).

'® Braunfeld v. Brown, 366 U.S. 599 (1961); Gallagher v.

Crown Kosher Super Mkt., 366 U.S. 617 (1961).

'S Jimmy Swaggart Ministries v. Bd. of Equalization of Cal.,

493 U.S. 378 (1990); Hernandez v. Commissioner, 490 U.S. 680

(1989); United States v. Lee, 455 U.S. 252 (1982).

20 Newman v. Piggie Park Enters., 390 U.S. 400 (1968); Bob

Jones Univ. v. United States, 461 U.S. 574 (1983).

26

the Court has applied strict scrutiny to assess the

facial validity of discriminatory enactments.

The anti-discrimination cases illustrate the

Court’s understanding that when a_ religious

accommodation would harm the civil rights of third

parties—even a relatively small group of third

parties—the government is not required to grant the

exemption.

In Bob Jones University, the Internal Revenue

Service refused to grant tax-exempt status to private

schools that practiced racial discrimination. That

ruling was challenged by two schools of higher

education, one of which prohibited its students from

dating or being married to persons of another race,

and the other of which was one of the few remaining

institutions that prohibited admission of African

American students. Both petitioners claimed that their

discriminatory policies were religiously compelled,

thereby entitling them to Free Exercise Clause

exemptions.

The Court applied a form of heightened scrutiny.

The government, it explained, “may justify a

limitation on religious liberty by showing that it is

essential to accomplish an overriding governmental

interest.” 461 U.S. at 603 (quoting Lee, 455 U.S. at

257). The Court concluded, however, that the

government's “fundamental, overriding interest in

eradicating racial discrimination in education” was

grounds for denying the exemptions claims, because

they “cannot be accommodated with that compelling

governmental interest, and no ‘less restrictive means’

are available to achieve the governmental interest.” Jd.

at 604 (quoting Thomas, 450 U.S. at 718).

27

Notably, it did not matter in Bob Jones that very

few schools in the nation refused to admit African

Americans, or that, in the case of Bob Jones

University, presumably few of its students would

choose to date persons of another race. The Court thus

held, in effect, that the government had a compelling

interest in eradicating race discrimination even as to

the relatively small number of African American

students who would choose to attend the handful of

schools that retained discriminatory practices. See also

Martin S. Lederman, Reconstructing RFRA: The

Contested Legacy of Religious Freedom Restoration,

125 Yale L.J. F. (forthcoming March 2016) (discussing

Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968)).

The taxation cases are also instructive. In

United States v. Lee, for example, a member of the Old

Order Amish sought an exemption from the

requirement to remit Social Security taxes for his

employees because he believed it was sinful for those

employees to accept Social Security benefits and

therefore religiously impermissible for him to

contribute to the program. The Court unanimously

denied the exemption, explaining that “[t]he tax

system could not function if denominations were

allowed to challenge the tax system because tax

payments were spent in a manner that violates their

religious belief.” 455 U.S. at 260. The Court also

emphasized that such exemptions are disfavored

because “[g]ranting an exemption from social security

taxes to an employer” might “operate[] to impose the

employer's religious faith on the employees.” Jd. at

261.

28

Lee exemplifies another important aspect of the

“least restrictive means” test. As Justice Stevens

pointed out in his concurring opinion, Lee was merely

seeking an exemption for the taxes of fellow members

of his religious order, whose religious obligations

presumably would have precluded them from

collecting Social Security payments from the

government. “|I]t would be a relatively simple matter,”

Justice Stevens explained, for Congress to craft an

exemption limited to a discrete religious community

with its own welfare system, to be applied with respect

to employees who would voluntarily forfeit their right

to collect benefits. Jd. at 262 (Stevens, J., concurring in

the judgment). Such a statutory amendment surely

was possible—indeed, several years after the Court’s

decision, Congress enacted precisely such a law. Pub.

L. 100-647, tit. VIII, § 8007(a)(1), 102 Stat. 3781

(1988), codified -at 26 U.S.C. § 3127 (exempting

employers of certain religious sects from making

payments respecting any of their employees, also

members of the same sect, who filed a parallel

application opting out of the right to receive benefits).

The Court in Lee, however, did not consider the mere

possibility of such action to be a constitutionally

relevant “less restrictive” means.

That disposition made sense. When conferral of a

religious exemption would cause harms to third

parties, or to the state fisc, a subsequent legislature

could almost always ameliorate such harm by passing

a new statute—including, in many cases, an additional

appropriation. If such a new law were deemed a “less

restrictive” alternative, then the government would

always be compelled to afford exemptions that harm

third parties, because in theory Congress could

29

compensate those third parties for their losses by the

simple expedient of more taxing and spending.”' In

such cases, the result of granting the religious

accommodation would almost invariably produce

serious harm to the government’s compelling interests.

That cannot be what Congress intended RFRA to

require. See infra at 32-34.

** * *

This half-century of precedents, from Braunfeld

and Sherbert and Yoder, through Jones and Lee and

the other cases of the 1980’s, right through to recent

cases such as Hobby Lobby and Holt, reflects a unified

and longstanding approach. In the context of requests

for religious exemptions to valid and _ generally

applicable laws, the Court has appropriately construed

and applied the “least restrictive means” component of

the religious exemption test pragmatically, with due

respect for the government’s need to provide for the

health and wellbeing of all the people. The test has

never been an exercise in hypothetical alternatives,

especially if (as in Lee) those alternatives would

require subsequent legislative action. Nor has the

Court applied the test to privilege religiously

motivated conduct above the burdens that

accommodations can impose on the government and on

2! Take, for example, the religious objection to the federal

minimum wage at issue in Tony and Susan Alamo Foundation v.

Secretary of Labor, 471 U.S. 290 (1985). Congress in theory could

have passed a law providing supplemental payments to the

employees who did not receive the minimum wage from their

religiously objecting employers; but that hypothetical possibility

had no effect on the Court’s resolution of the employer's Free

Exercise claims.

30

third parties. Accordingly, as the Court itself put the

point in Yoder, the inquiry under the “compelling

interest”/“least restrictive means” test of the pre-Smith

Free Exercise cases—now incorporated into RFRA—is

in effect a pragmatic assessment of whether the

facially neutral regulation “in its application .. .

unduly burdens the free exercise of religion.” 406 U.S.

at 220 (emphasis added); see also Lee, 455 U.S. at 259;

Douglas Laycock, The Religious Exemption Debate, 11

RUTGERS J. L. & RELIG. 139, 151-52 (2009) (“The

compelling interest test is best understood as a

balancing test with the thumb on the scale in favor of

protecting constitutional rights.”).

Ill. The Challenged Accommodation

Satisfies RFRA’s “Compelling

Interest”“Least Restrictive Means”

Test.

The government’s brief ably explains why the

agencies’ accommodation for nonprofit religious

organizations satisfies the “least restrictive means”

test this Court has applied since 1961. The agencies

have already struck the “sensible balance[]” RFRA

requires. 42 U.S.C. § 2000bb(a)(5). By offering an

accommodation that allows nonprofit religious

employers to avoid paying for, administering, or

offering reimbursements for the costs of contraception,

while also ensuring that women employees and

dependents have seamless and cost-free access to the

most effective forms of contraception and equal access

to health care, the government has reconciled RFRA’s

two competing imperatives. Critically, this

“accommodation may be made to the employers

without the imposition of a whole new program or

31

burden on the government.” Hobby Lobby, 134 S. Ct.

at 2786 (Kennedy, J., concurring).”*

Petitioners insist that the “least restrictive

means” requirement of RFRA should be applied much

more stringently. But they rely upon principles this

Court has articulated in cases involving the very

different context of statutes regulating speech on the

basis of content—cases in which the Court has

declared such statutes facially unconstitutional. As we

explained in Part II, those more restrictive principles

are inapposite in this very different context, and are

inconsistent with this Court’s precedents under the

Free Exercise Clause and RFRA.

1. Almost all of petitioners’ proposed alternatives

would require Congress to enact appropriations

statutes to ameliorate the harms to governmental

interests caused by the requested religious

exemptions—for example, a new law _ allowing

employees of objecting employers (and their

dependents) to purchase a_ subsidized, second

insurance plan on an insurance exchange. See Brief for

Petitioners in Nos. 15-35, et al. (ETBU Br.) at 73-74.

Invoking cases challenging the facial validity of

22 As the government notes, U.S. Br. at 12, the agencies

have thus been more solicitous of objecting religious organizations

than several states have been in implementing analogous, state-

law contraception obligations. See also Catholic Charities of

Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92-94 (Cal. 2004)

(upholding California’s law under state constitutional provision

requiring application of a “compelling interest’/“least restrictive

means” test).

32

content-discriminatory speech restrictions, see supra

note 12, petitioners argue that “[t]his Court routinely

identifies options that would require congressional

action as feasible less restrictive means.” Jd. at 74

(citing Ashcroft v. ACLU, 542 U.S. 656, 669 (2004);

United States v. Playboy Entm’t Grp., 529 U.S. 803,

815 (2000); see also Brief for Petitioners in Nos. 14-

1418, et al. (Zubik Br.), at 81.

Inquiring about - the prospect of alternative

legislation makes perfect sense where the question is

whether the legislature was justified in enacting a law

that directly regulates speech on the basis of its

content. In such cases, the operative question is

whether Congress could have addressed its interests

by enacting a different, content-neutral law. Therefore,

when the Court holds that a “neutral” law would have

sufficed as a “less restrictive” means of dealing with

the problem, the Court also declares that the

challenged law is facially invalid, so that the

legislature, if it wishes to address the problem, must

go back to the drawing board.

In a RFRA case, by contrast, the government has

not set out to restrict the exercise of religion. It has,

instead, enacted a law that is constitutionally valid on

its face, but that might on occasion incidentally impact

the religious exercise of some persons. Religious

objectors of many kinds might then seek exemptions

from such a law, perhaps many years after its

enactment. Even if the executive and legislature at

that later time share the enacting Congress’s views of

the government’s compelling interests, they will rarely

have the incentive or political capital to pass

legislation to pay for the costs of specific RFRA

exemptions: Other, more _ pressing legislative

33

initiatives will almost invariably take precedence. See

Lederman, Reconstructing RFRA, supra.

If the mere theoretical possibility of such a newly

enacted law sufficed to defeat the government’s

required showing under RFRA, the government would

have lost many pre-Smith cases, such as Lee (see supra

at 27-28). Yet the Court never imposed such an

obligation, because it would make little sense in this

context. Therefore the mere prospect that a future

legislature might do so is not a “less restrictive” means

that requires the conferral of those exemptions.

Indeed, it is implausible to think that when Congress

enacted RFRA it anticipated it would be compelled to

enact a never-ending series of substitute policies to

achieve its important ends every time a RFRA

exemption is conferred.

Nor did Congress expect judicially mandated

pressure to tap the federal fisc every time an employer

refuses on religious grounds to provide required

benefits to its employees. It is true, as the Court noted

in Hobby Lobby, that RFRA and RLUIPA “may in

some circumstances require the Government to expend

additional funds to accommodate citizens’ religious

beliefs.” 134 S. Ct. at 2781.”° And, so, for instance, if

the Executive branch already has such funds available

that it could use for the purpose of ameliorating the

harms suffered by others, it might have to use those

funds to do so, all else being equal. It is another thing

3 RLUIPA, for instance, expressly provides that “this

chapter may require a government to incur expenses in its own

operations to avoid imposing a substantial burden on religious

exercise.” 42 U.S.C. § 2000cc-3(c).

34

entirely, however, to suggest that the theoretical

prospect of a new appropriations statute is a “less

restrictive means” for purposes of the RFRA inquiry.

Accord Catholic Charities of Sacramento, Inc. v.

Superior Court, 85 P.3d 67, 94 (Cal. 2004).

2. As the government demonstrates, U.S. Br. at 76-

85, all of petitioners’ proposed alternatives, including

those that would require new legislation, would be

considerably less effective than the agencies’ nonprofit

accommodation in furthering the government’s

compelling interests in reducing unintended

pregnancies and ensuring women’s equal access to

health care.

The Zubik petitioners, once again citing an

inapposite precedent involving a content-based speech

restriction, argue that the government “does not have

a compelling interest in each marginal percentage

point by which its goals are advanced.” Zubik Br. at 70

(quoting Brown v. Entm’t Merchants Ass’n, 131 S. Ct.

2729, 2741 n.9 (2011). As we have explained

however—especially with reference to Braunfeld and

Bob Jones, see supra at 17-18, 26-27—in this very

different context of religious exemptions, an

alternative is not an acceptable “less restrictive” option

if it results in meaningful harm to even a few third

parties. In part because of serious constitutional

concerns and fundamental principles underlying the

Religion Clauses, see supra at 24, the government has

a compelling interest in not requiring even a small

number of nonbelievers to bear the costs of others’

religious exercise. Thus, as this Court recognized in

Hobby Lobby, courts applying RFRA “must take

adequate account of the burdens a_ requested

accommodation may impose on nonbeneficiaries.” 134

35

S. Ct. at 2781 n.37 (quoting Cutter, 544 U.S. at 720);

see also Catholic Charities of Sacramento, 85 P.3d at

93-94 (“Nor are any less restrictive (or more narrowly

tailored) means readily available for achieving the

state’s interest in eliminating gender discrimination.

Any broader exemption increases the number of

women affected by discrimination in the provision of

health care benefits.”).

3. The government demonstrates (U.S. Br. at 74-

76) that it has compelling interests in making it as

easy as possible for women to use _ effective

contraception by ensuring that they have cost-free and

“seamless” access to the full range of contraceptive

options; and in guaranteeing that women receive equal

health coverage appropriate to their medical needs.

The petitioners’ proposed alternatives, by contrast,

would impose significant, and unequal, financial,

administrative, and logistical obstacles on many

women.

Petitioners—once again invoking a_ precedent

involving a content-based speech restriction—argue

that a less restrictive alternative might be one in

which the onus is put on private third parties to “take

action” to avoid the relevant harms. See ETBU Br. at

72; Zubik Br. at 73 (both citing Playboy Entm’t Grp.,

529 U.S. at 824).

As we have explained, however, the Court has

never applied the Free Exercise/RFRA version of

heightened scrutiny to require the government to

resort to options that would impose such burdens on

third parties—especially not where, as here, such

burdens would be borne only by persons of one sex.

** * *

36

RFRA requires reasonable judgments, and the

determination of sensible balances between religious

concerns and competing governmental and private

interests. The accommodation challenged in this case,

and cited with approval in Hobby Lobby, is such a

tailored balancing. The petitioners’ view of the “least

restrictive means” test, by contrast, would destroy

RFRA’s carefully calibrated arrangements, and would,

in this case, result in foreseeable and substantial harm

to tens or hundreds of thousands of women. The Court

should reject that view of what RFRA requires.

CONCLUSION

For the foregoing reasons, the decisions below

should be affirmed.

Respectfully submitted,

Tejinder Singh Martin S. Lederman

GOLDSTEIN & RUSSELL, P.C. Counsel of Record

7475 Wisconsin Ave. GEORGETOWN UNIVERSITY

Suite 850 LAW CENTER

Bethesda, MD 20814 600 New Jersey Ave., NW

Washington, DC 20001

(202) 662-9937

msl46@law.georgetown.edu

February 17, 2016