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

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## Record

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

## Text

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

15-105, 15-119, 15-191

IN THE

Supreme Court of the 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0556%3A74. Public record. Not legal advice.