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 Gnited States

S

DAVID A. ZUBIK, et al.,

Petitioners,

Vv.

SYLVIA BURWELL, Secretary

of Health and Human Services, et al.,

Respondents.

+

On Writs Of Certiorari To The

United States Courts Of Appeals For The

Third, Fifth, Tenth And D.C. Circuits

*

BRIEF OF AMICUS CURIAE

THE HONORABLE ROBERT C. “BOBBY” SCOTT

IN SUPPORT OF THE RESPONDENTS

+

MARCI A. HAMILTON, Esq.

Counsel of Record

36 Timber Knoll Drive

Washington Crossing, PA 18977

(267) 907-3995

hamilton.marci@gmail.com

Counsel for Amicus Curiae

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

ey ee IIE cinconccnsncscnenscosensensneteinentes i

TABLE OF AUTHORITIES .....................:secceeeeees ii

INTEREST OF AMICUS CURIAE...................044. 1

SUMMARY OF ARGUMENT ................ccceeeeeeeees 2

EE ticnietinsecntinininninnstnseipinnnssqnninetssesninese 3

I. RFRA’s Legislative History Indicates Un-

raveling Support Amid Growing Concerns

about the Breadth and Scope of Its Im-

SEE dctssebunndiimmbiddanseniinmnaiiiininmeeninmnees 9

II. The Hobby Lobby Interpretation of RFRA

Threatens the Separation of Powers by

Delegating Lawmaking Power to the Un-

I vinincicuinninnnninnecniasiiinininsiiiaiiainn 21

III. The Petitioner’s Theory Would Result in

a RFRA Interpretation Unconstitutional

TT tittnisiiintinrictaiomnetéaiieninsetiénmnnines 26

I ipsccntdisnnnninninidinsinniinniianinnitadiubdiaeonseeiin 28

rH

TABLE OF AUTHORITIES

Page

CASES

Adkins v. Children’s Hospital, 261 U.S. 525

STITT oiitieisetaichteecinindees dialed cehnmaceeaceettlaneiiaiaaeniiiiaiiaiiianiid 23

Bob Jones Univ. v. United States, 461 U.S. 574

Ices iaiitecechiisiiich eat eal estan iidecieinsinabiiemmionniniel 6

Bowen v. Roy, 476 U.S. 693 (1986)..................cccceeeeeee 21

Burwell v. Hobby Lobby, 573 U.S. __, 134

Ss ITE ictincniiannoteaadunineinsnssnndsnnniniini passim

Catholic Health Care Sys. v. Burwell, 796 F.3d

ceil cl eh ireninioninnl 26

Church of the Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520 (1993)....................04. 9, 10, 11

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

Cutter v. Wilkinson, 544 U.S. 709 (2005)................... 23

Dole v. Shenandoah Baptist Church, 899 F.2d

IE, BI ninsiiiiercdidiniteiiaiieieinaiaiinmmetiemsamuneiel 6

East Texas Baptist Univ. v. Burwell, 793 F.3d

I I ial eecnacael 26

Employment Div. v. Smith, 494 U.S. 872 (1990) ....passim

Field v. Clark, 143 U.S. 649 (1892)............... eee 25

First Church of Cannabis v. Indiana, No.

49C01-1507-MI-022522 (Marion Co. Cir. Ct.

I i aalicaeaeeaiiatibilinalaaieitinadidibieaannbin 12

Geneva Coll. v. Sec’y United States Dep't of

Health & Human Servs., 778 F.3d 422 (3d

ee Se siciccessimnseiisiiennindinssennapiscnnsinnisniiiamieniuannnaniins 26

ill

TABLE OF AUTHORITIES — Continued

Page

Goldman v. Weinberger, 475 U.S. 503 (1986)............ 21

Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal, 546 U.S. 418 (2006)............. 12, 28

Grace Schools v. Burwell, 801 F.3d 788 (7th Cir.

lata aia aa a ates 26

Hammer v. Dagenhart, 247 U.S. 251 (1918).............. 26

Holt v. Hobbs, 135 S. Ct. 853 (2015).................... 22, 23

J.W. Hampton, Jr. v. United States, 276 U.S.

REESE APRESS ee ea ee 25

Jacobson v. Massachusetts, 197 U.S. 11 (1905)......... 21

Little Sisters of the Poor Home for the Aged v.

Burwell, 794 F.3d 1151 (10th Cir. 2015)........... 12, 26

Lochner v. New York, 198 U.S. 45 (1906)................... 23

Michigan Catholic Conference v. Burwell, 755

NE SIE vicinncicisesiideneinsstentemmnicemmmmenicions 26

Miller v. Davis, No. CV-15-44-DLB, 2015 WL

9461520 (E.D. Ky. Sept. 11, 2015)...................00... 12

Mistretta v. United States, 488 U.S. 361 (1989)........ 24

Nebbia v. New York, 291 U.S. 502 (1934) .................. 24

Nixon v. United States, 506 U.S. 224 (1993) ............. 21

O’Lone v. Estate of Shabazz, 482 U.S. 342

I aiken aint tata tinrat ines dined 22

Perez v. Paragon Contractors Corp., No. 2:13-

CV-281 RJS, 2013 WL 4478070 (D. Utah

a cinicsschiccdiasianciacialasiaasteniaemmuiaiis 12

iV

TABLE OF AUTHORITIES — Continued

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

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

I isteach citadel tata 26

Prince v. Massachusetts, 321 U.S. 158 (1944)........... 21

Sharpe Holdings v. Burwell, 801 F.3d 927 (8th

EIRENE Sooper ornare 27

Sherbert v. Verner, 374 U.S. 398 (1963)..................0.. 15

United States v. Carolene Products Co., 304

iis trnietatiaticiaeaiiiaarietiadialaatialitiieeaneaiciiiaell 24

United States v. Lee, 455 U.S. 252 (1982).................. 21

United States v. Virginia, 518 U.S. 515 (1996)............ 6

West Coast Hotel Co. v. Parrish, 300 U.S. 379

ical taeceeiitetltaltetlaa anti iindilas iain tian islet 24

Whitman v. American Trucking Association,

| TEL TI ee. 27

Williamson v. Lee Optical of Oklahoma, Inc.,

A 24

Wisconsin v. Yoder, 406 U.S. 205 (1972) ...................00. 5

STATUTES AND RULES

42 U.S.C. § 2000bb et seq. (2012).................. passim

Accommodations to Religious Observance and

Practice, 41 C.F.R. § 381.11 (2016)............00..00000.... 28

Exemptions Based on Religious Dietary Laws,

a Oe ee CE renectictensiinnncnnienccnsimntccnnnines 28

29 C.FR. § 1606.20 1) (2O1G) ..............ceccrcrrcccesscecsees 28

Vv

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTION

Be I MII, 1 0110s re ccrtesindeniceninnnnamnietenimenial passim

U.S. Const. amend. I (Free Exercise Clause)..... passim

U.S. Const. amend. I (Establishment Clause) .... passim

U.S. Const. amend. I-X (Bill of Rights)............. passim

ts MII, BIIID cctrtsccncsccsnccsccsenonsncnocnnsies passim

UW. CORP. GUGM. BEV, § ©. .cccccccccsoccccscscessesccee passim

Ss EG MIEN TT dpittiidediceieninicinetninisisnniiatntnbinedscnmeidinieieons 25

LEGISLATIVE MATERIALS

Equality Act, H.R. 3185, 114th Cong. (2015)............. 19

H.R. 1691, 106th Cong. (1999)... passim

H.R. Rep. No. 106-219 (1999).................00000008 13, 16, 20

Religious Freedom Restoration Act of 1991:

Hearing on H.R. 2797 Before the House

Subcomm. on Civil and Constitutional

Rights of the H. Comm. on the Judiciary,

EEE eee ee OS 9

Religious Land Use and Institutionalized Per-

sons Act, S. 2869, 106th Cong. (2000)........ 16, 17, 18

Religious Liberty: Hearing on Issues Relating to

Religious Liberty Protection and Focusing on

the Constitutionality of a Religious Protection

Measure Before the H. Comm. on the Judici-

A, Te I i ceccinccccsiscoteceentccnntonecensencesones 15

vl

TABLE OF AUTHORITIES — Continued

Page

Religious Liberty Protection Act of 1998: Hear-

ing on H.R. 4019 Before the Subcomm. on the

Constitution & H. Comm. on the Judiciary,

Re I Ce iciitenisinsciicseccnnsaisaianniamaiitl 8, 13, 14

136 Cong. Rec. S17330-31 (1990).................cccseseccesseees fe)

146 Cong. Rec. S7774-01 (2000).............cccccccssscersssvees 16

OTHER AUTHORITIES

Brief for Petitioner, Church of the Lukumi

Babalu Aye v. City of Hileah, 508 U.S. 520

CR ES ee ceccsiniicessniccssiotetaeiieneecebuididasaiinnl 10

Brief of Julian Bond et al., as Amici Curiae

Supporting the Government, Sebelius uv.

Hobby Lobby Stores, sub. nom Burwell v.

Hobby Lobby Stores, 573 U.S. __, 134 S. Ct.

2751 (2014) (No. 13-3B54).............ccccccccsseesssssesseeeccesees 5

Campbell Robertson & Richard Pérez-Peja,

Bills on ‘Religious Freedom’ Upset Capitols in

Arkansas and Indiana, N.Y. Times, March 31,

2015, http://www.nytimes.com/2015/04/01/us/

religious-freedom-restoration-act-arkansas-

I I icccvicnitetsniininiiniiiiedenenisthiunieastaibs 18

Glen E. Summers, Private Property Without

Lochner: Toward a Takings Jurisprudence

Uncorrupted by Substantive Due Process,

142 U. PA. L. REV. 837 (1993)............sssecccsssssosceeeees 23

Vii

TABLE OF AUTHORITIES — Continued

Kristina Peterson, Supreme Court’s Hobby

Lobby Ruling Ignites Debate Over Religious-

Freedom Law, Wall St. J. (June 30, 2014)

http://www. wsj.com/articles/supreme-courts-

hobby-lobby-ruling-ignites-debate-over-religious-

freedom-law-1404155510.......... ccc ccc cece ees

Marci A. Hamilton, Gop vs. THE GAVEL: THE

PERILS OF EXTREME RELIGIOUS LIBERTY (Cam-

bridge Univ. Press 2014).................ccccecseeeeeeeeeees

Martha A. Field, Garcia v. San Antonio Metro-

politan Transit Authority: The Demise of a

Misguided Doctrine, 99 Harv. L. REv. 84

Press Release, Rep. Nadler, Supreme Court

Ruling on Hobby Lobby Case is a Defeat for

Women, Religious Liberty (June 30, 2014).......

Thomas Jefferson, Virginia Statute of Religious

Freedom, in Thomas Jefferson: Word for

Word (Maureen Harrison & Steve Gilbert

Page

1

INTEREST OF AMICUS CURIAE'

Congressman Robert C. “Bobby” Scott was first

elected to Congress in 1992 and served on the House

Judiciary Committee from 1993 until 2014 during

that committee’s deliberation of a number of key

religious liberty issues, including the Religious Free-

dom Restoration Acts of 1993 and 2000 (“RFRA”). As

Ranking Member of the Subcommittee on the Consti-

tution from 1997 to 1999, he also played a key role in

highlighting civil rights concerns as Congress re-

examined RFRA after the decision in City of Boerne v.

Flores, 521 U.S. 507 (1997), and during the considera-

tion of the Religious Liberty Protection Act (H.R. 1691).

In 2015, Congressman Scott assumed the Rank-

ing Member position of the House Education and the

Workforce Committee. The Committee shares juris-

diction on matters related to the Affordable Care Act,

as well as strengthening worker protections and

defending the civil rights of workers. It is Congress-

man Scott’s view that religious liberty and freedom

should not abrogate the civil rights protections of

workers.

«

* No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribu-

tion intended to fund the preparation or submission of this brief.

No persons other than the Amicus or his counsel made a mone-

tary contribution to this brief’s preparation or submission. All

parties have consented on the docket to the filing of amicus

curiae briefs.

2

SUMMARY OF ARGUMENT

Religious freedom lies at the heart of United

States history and tradition, and has nurtured not

only extraordinary religious diversity but also a

peaceful society in which everyone is protected from

harm regardless of their beliefs. Religious liberty

needs to be balanced with concerns for harm to oth-

ers, and that was the assumption of the bipartisan

support behind the Religious Freedom Restoration

Act of 1993 (“RFRA”). After RFRA was found uncon-

stitutional in City of Boerne v. Flores, 521 U.S. 507

(1997), many members of Congress began to question

whether RFRA was the balance between liberty and

protection from harm they assumed in 1993. Their

concerns were assuaged by RFRA’s proponents’ exe-

gesis of the bill, which repeatedly assured them that

RFRA would not trump civil rights laws and would

not be a tool for employers to overcome employee

anti-discrimination laws.

When RFRA is interpreted literally, without

reference to this legislative history, it becomes a tool

by which a court can insert its policy judgment for the

legitimate policy decisions of the elected branches.

Amicus curiae is concerned that this Court’s interpre-

tation in Burwell v. Hobby Lobby, 573 U.S. __, 134

S. Ct. 2751 (2014), crosses this boundary line into a

violation of the separation of powers. To rule in favor

of Petitioners in this case would be a certain violation

of the separation of powers, as the Court would be

putting itself in the shoes of the elected branches in

reaching permissive accommodation.

3

Petitioners are asking this Court to personalize a

fair and generous religious accommodation, to consid-

er only their beliefs, and not the beliefs or rights of

their employees. That is not the RFRA interpretation

that a bipartisan Congress supported in 1993 or

permitted to pass in 2000. It is certainly not the

history of religious tolerance and peaceful religious

coexistence that is the hallmark of the United States.

sf

ARGUMENT

Religious freedom is a cornerstone of American

law and society, a right that was of great importance

to the founding generation and protected by the First

Amendment. The notion that religious liberty is

important and valuable to the public good is an idea

embedded in American society, but the framing

generation also understood that there is such a thing

as too much liberty. Religious liberty must have a

limit, particularly when its effect is harm to others.

This “no-harm principle” was a notion articulated by

John Locke in the 17th century, widely shared by the

framing generation in the 18th century, and en-

trenched in modern philosophy and law by John

Stuart Mill. In essence, the principle is a firm rejec-

tion of individual (or institutional) autonomy from the

laws that protect others from harm. While the gov-

ernment has no business interfering in our beliefs, it

must legitimately protect us from others’ potential

harms. GOD vs. THE GAVEL: THE PERILS OF EXTREME

4

RELIGIOUS LIBERTY 278-313 (Cambridge Univ. Press

2014).

Indeed, the 1786 Virginia Statute for Establish-

ing Religious Freedom, which served as a basis for

the First Amendment, enshrined this very balance

between the freedom of conscience and not diminish-

ing the rights of others to the rights and protections

of civil law:

Be it enacted by the General Assembly, that

no man shall be compelled to frequent or

support any religious worship, place, or min-

istry whatsoever, nor shall be enforced, re-

strained, molested, or burthened in his body

or goods, nor shall otherwise suffer on ac-

count of his religious opinions or belief; but

that all men shall be free to profess, and by

argument to maintain, their opinion in mat-

ters of religion, and that the same shall in no

wise diminish, enlarge, or affect their civil

capacities.

Thomas Jefferson, Virginia Statute of Religious

Freedom, in Thomas Jefferson: Word for Word 55-57

(Maureen Harrison & Steve Gilbert eds., 1993). It is

the question of this very balance that is before the

Court in the case at hand.

Despite religion’s societal value, it has contribut-

ed to significant social ills as well, such as slavery,

sexism, anti-miscegenation, child abuse, and segrega-

tion, to name a few. At the beginning of our nation’s

history, some of the most fundamental inequalities

were justified by citing to religious beliefs. The Civil

5

Rights Act of 1964 was met with significant objection

based on religion, and although such criticisms were

ultimately rejected, resistance to the Act persisted

even after its adoption. See Brief of Julian Bond et al.,

as Amici Curiae Supporting the Government at 10-

27, Sebelius v. Hobby Lobby Stores, sub. nom Burwell

v. Hobby Lobby Stores, 573 U.S. __, 134 S. Ct. 2751

(2014) (No. 13-354).

The Religious Freedom Restoration Act, 42

U.S.C. § 2000bb (1993) (“RFRA”), was a direct con-

gressional response to the Supreme Court’s decision

in Employment Div. v. Smith, 494 U.S. 872 (1990).

Smith was met with extreme criticism by religious

entities and legal scholars alike, who cast the decision

as a dramatic, unjustified departure from previous

free exercise cases. Working with the characterization

of Smith’s supposed ill effects on religious liberty as

advanced by these religious groups and academics,

Congress passed RFRA three years after Smith was

decided. It did so on the premise that RFRA would

“restore” prior free exercise doctrine, that is, the

ordinary strict scrutiny test articulated by the Su-

preme Court in Wisconsin v. Yoder, 406 U.S. 205

(1972) and Sherbert v. Verner, 374 U.S. 398 (1963).

There was no discussion or expectation that the

Court’s free exercise outcomes other than Smith

would be altered by RFRA.

The Supreme Court majority's interpretation of

RFRA in Burwell v. Hobby Lobby, 573 U.S. ___, 134

S. Ct. 2751 (2014), came as a surprise to many, in-

cluding members of Congress who had supported

6

RFRA in the past. The statutory test had developed

beyond what they believed RFRA was intended to

accomplish and reneged on the promises RFRA’s

supporters had given that federal civil rights would

not be undermined by RFRA.

This Court and others have rejected the assertion

of religious beliefs as a justification for denying

Americans full civil rights protection. For example,

courts have rejected the claim that women should

receive less compensation than men on the belief that

men are the head of the house, the wife, and the

family. Dole v. Shenandoah Baptist Church, 899 F.2d

1389, 1392 (4th Cir. 1990). Similar invocations of

religious beliefs related to race and sex have been

struck down by the Court. See Bob Jones Univ. v.

United States, 461 U.S. 574 (1983) (holding that the

governmental interest in eliminating racial discrimi-

nation outweighed any burden on the religious beliefs

of a university. Bob Jones University refused to admit

African-American students engaged in interracial

relationships on the premise that it believed the Bible

forbade such relationships); United States v. Virginia,

518 U.S. 515 (1996) (finding no “exceedingly persua-

sive justification” for denying women admission to an

all-male military school and holding that classifica-

tions on the basis of sex may never be used to perpet-

uate gender stereotypes and the legal, social, and

economic inferiority of women).

Many members and advocacy groups, who active-

ly worked for RFRA’s passage, were surprised by the

7

court’s decision in Hobby Lobby.’ For others, Hobby

Lobby affirmed the troubling implications of RFRA

that began to emerge after its passage in 1993 and

led to the unraveling of support for it in 1999 during

consideration of H.R. 1691, 106th Cong. (1999), the

“Religious Liberty Protection Act” or RLPA.* H.R.

1691 was intended to restore RFRA’s applications to

the states post-Boerne decision, which was subject to

many objections and dissents in Congress. In Boerne,

the Court held that Congress had exceeded its consti-

tutional authority in part by applying RFRA to the

* For example, Senator Charles Schumer, who introduced

RFRA in 1993, responded to the Hobby Lobby decision that

RFRA “was not intended to extend the same protection to for-

profit corporations, whose very purpose is to profit from the open

market.” Kristina Peterson, Supreme Court’s Hobby Lobby

Ruling Ignites Debate Over Religious-Freedom Law, Wall St. J.

(June 30, 2014) http://www.wsj.com/articles/supreme-courts-hobby-

lobby-ruling-ignites-debate-over-religious-freedom-law-1404155510.

Rep. Jerry Nadler stated: “When we passed RFRA in 1993, we

sought to restore — not expand — protection for religion. We kept

in place the core principle that religion does not excuse for-profit

businesses from complying with our laws. Religious belief did

not excuse restaurants or hotels from following our civil rights

laws in the 1960s or an Amish employer from paying into the

Social Security system in the 1980s.” Press Release, Rep.

Nadler, Supreme Court Ruling on Hobby Lobby Case is a Defeat

for Women, Religious Liberty (June 30, 2014).

* It is worth noting that RLPA, H.R. 1691, was identical to

RFRA in that they both advanced an extreme religious liberty

test (imposing on the government the requirement of proving

that all laws serve a “compelling interest” in the “least restric-

tive means”). The main difference is that H.R. 1691 relied on the

Commerce Clause in the hopes of passing constitutional muster.

As a result, the legislative history and the debate of its provi-

sions are intertwined with the RFRA of 2000.

8

states absent a clear and persistent record of consti-

tutional violations. In short, the “bipartisan” broad

support for RFRA ended not long after this Court

decided Boerne and members re-examined RFRA.

In the 105th Congress, Ranking Member Robert

C. “Bobby” Scott of the Subcommittee on the Consti-

tution of the House Judiciary Committee, noted, “Mr.

Chairman, part of my concern about the constitution-

ality of this bill stems from some of the language in

Boerne, where the Court expresses almost a hostility

to this kind of legislation and gives me the idea that

it won’t take much for them to throw out the next

one. And the language that I am referring to says...

government's ability to enforce generally applicable

prohibitions of socially harmful conduct cannot de-

pend on measuring the effects of governmental action

on a religious objector’s spiritual development. To

make an individual’s obligation to obey such law

contingent upon the law’s coincidence with his reli-

gious beliefs, except where the State’s interest is

compelling, contradicts both constitutional tradition

and common sense.” Religious Liberty Protection Act

of 1998: Hearing on H.R. 4019 Before the Subcomm.

on the Constitution & H. Comm. on the Judiciary,

105th Cong. at 65-66 (1998).

This amicus brief outlines some of the complicat-

ed legislative history of RFRA that is important to the

Court’s deliberation on the matter at hand. Further,

the brief argues that the Hobby Lobby majority's

interpretation of RFRA risks violating the separation

9

of powers, particularly if it is applied to the facts of

this case.

I. RFRA’s Legislative History Indicates Un-

raveling Support Amid Growing Concerns

about the Breadth and Scope of Its Im-

pact

When RFRA was first enacted in 1993, a biparti-

san coalition supported the laudable concept of shor-

ing up protections for “religious liberty.” The statute’s

title claimed that it was simply “restoring” religious

liberty cases to a familiar, prior era. See Religious

Freedom Restoration Act of 1991: Hearing on H.R.

2797 Before the House Subcomm. on Civil and Consti-

tutional Rights of the H. Comm. on the Judiciary,

102nd Cong. 326 (1992) (statement of Professor

Douglas Laycock) (“RFRA makes the exception explic-

it rather than implicit, but the standard for satisfying

the exception should not change.”). The argument

was made that the only result of enacting RFRA

would be to overturn one case, Employment Div. v.

Smith, 494 U.S. 872 (1990). See 136 Cong. Rec.

S17330-31 (1990) (statement of Sen. Joe Biden) (goal

of RFRA was to “restore the previous rule of law,

which required the Government to justify restrictions

on religious freedom”).

Five months before RFRA was enacted in 1993,

when this Court decided Church of the Lukumi

Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993),

the tension between RFRA and the Court’s prior

doctrine began to emerge. In that case, Professor

10

Douglas Laycock, representing the church, argued

that the Court should apply an extreme version of

strict scrutiny wherein the government must prove

the law serves a compelling interest by the “least

restrictive means.” See Brief for Petitioner at 36,

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

508 U.S. 520 (1993) (No. 91-948). The Lukumi deci-

sion did apply strict scrutiny, because the law at issue

was not generally applicable. Lukumi, 508 U.S. at

545-46.

More importantly, the Lukumi opinion also

affirmed the two-part holding in Smith: (1) laws that

are neutral and generally applicable receive rationali-

ty review while, (2) laws that are not neutral or not

generally applicable, are subject to ordinary strict

scrutiny. Lukumi, 508 U.S. at 531 (stating that neu-

tral, generally applicable laws are subject to low-level

scrutiny but a law that is either not neutral or not

generally applicable is subject to strict scrutiny,

where the government must prove the law satisfies a

compelling interest by narrowly tailored means).

While Lukumi was being litigated, RFRA was

pending before its initial passage. RFRA purportedly

“restored” prior case law in its very title, but in fact

its language departs from both elements of the

Court’s free exercise doctrine summarized in Smith

and Lukumi: RFRA (1) subjects neutral and generally

applicable laws to extreme strict scrutiny (not ration-

ality review) and (2) it subjects laws that are not

neutral or not generally applicable to that same

extreme standard (not ordinary strict scrutiny).

11

Lukumi involved a law that was not generally

applicable, because it targeted a small religious group

and therefore strict scrutiny was applied under the

First Amendment. In addition, the Native American

Church (the entity at issue in Smith) had obtained

exemptions in many states and from the federal

government, and, therefore, negated the very need for

RFRA after Smith. Thus, the Lukumi case and the

legislative response to Smith show that RFRA was an

overreaction. Lukumi, 508 U.S. at 539.

The congressional record, unfortunately, is blank

on this score between this Court’s Lukumi decision

and RFRA’s passage a mere five months later. De-

parting from its plain intent, RFRA would become a

revolution in free exercise, empowering some to

overcome neutral, generally applicable laws across

the federal spectrum, and would therefore lead to

unpredictable results, like Hobby Lobby.

Although there appeared to be broad support for

RFRA and the need to “return to past doctrine,” there

was a clear failure to fully imagine the path we are

now on and the threat RFRA could pose to a sweep-

ing, endless array of issues, e.g., increasing the rights

of some to discriminate in housing against the emerg-

ing fair housing laws. Thus, in the hearings leading

up to its first enactment in 1993, examples of the

need for hyper-strict scrutiny of generally applicable

laws were scarce. This contributed to RFRA’s invali-

dation. City of Boerne v. Flores, 521 U.S. 507, 530

(1997) (“RFRA’s legislative record lacks examples of

12

modern instances of generally applicable laws passed

because of religious bigotry.”).

At the time of RFRA’s passage in 1993, there was

no inkling that RFRA would be wielded as a weapon

to restrict access to contraception or to harm LGBTQ,

women, or children. Burwell v. Hobby Lobby, 573 U.S.

__., 134 S. Ct. 2751 (2014); Little Sisters of the Poor

Home for the Aged v. Burwell, 794 F.3d 1151 (10th

Cir. 2015); Miller v. Davis, No. CV 15-44-DLB, 2015

WL 9461520 (E.D. Ky. Sept. 11, 2015); Perez v. Para-

gon Contractors Corp., No. 2:13-CV-281 RJS, 2013

WL 4478070 (D. Utah Aug. 21, 2013).

Nor did anyone imagine it would be a pipeline for

the legalization of drugs. Gonzales v. O Centro

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

(2006); First Church of Cannabis v. Indiana, No.

49C01-1507-MI-022522 (Marion Co. Cir. Ct. filed Jul.

8, 2015).

In 1998 and 1999, after the Court’s decision in

Boerne striking down RFRA, Congress revisited

RFRA-like legislation in an effort to find a constitu-

tional basis to re-enact it. Tellingly, it is this history,

and members’ reconsideration of RFRA, during which

many members’ deep concerns about RFRA’s broad

scope and its impact on civil rights, along with other

important government interests, began to emerge. In

hearings in the 105th and 106th Congress on this

legislation, it became clear that there was a question

of the interplay between the tests of RFRA and a host

13

of governmental interests to prohibit discrimination,

and protect child welfare and other interests. Reli-

gious Liberty Protection Act of 1998: Hearing on H.R.

4019 Before the Subcomm. on the Constitution & H.

Comm. on the Judiciary, 105th Cong. at 68-71 (1998).

As noted in Dissenting Views to the House Re-

port filed on the never-enacted H.R. 1691 or RLPA:

We believe that the Boerne decision also in-

dicates that Congress may have violated

separation of powers principles by enacting

RFRA, an issue the Court will be forced to

decide if RLPA is enacted . . .. We know from

our brief experience with RFRA and with

several state versions of that statute that

some religious groups will use RLPA to at-

tack state and local civil rights laws.

H.R. Rep. No. 106-219, at 36 (1999).

Yet, proponents of RFRA responded to such

concerns about the impact on civil rights with assur-

ances to counter those concerns:

Very briefly about civil rights laws, I would

emphasize again what is frequently lost

sight of. RLPA is not a statute that by itself

trumps any particular practice or statute. It

simply says you have got to look at it again

and see if the statute or practice meets these

standards: Does it serve a very important

government interest, and does it do so in a

way least burdensome to religion? It invali-

dates no civil rights law or any other law. In

14

that respect, it is much narrower than exist-

ing exemptions from civil rights laws that

give carte blanche to religious institutions to

engage in religious discrimination, which is a

typical feature of civil rights laws. Many civil

rights laws have broader provisions — apply

that same standard to anything a religious

institution does. RLPA is not that broad. It

gives the government a chance to justify its

regulation. As I say in detail in the testimo-

ny, there aren’t any religious organizations of

any significance, and I don’t know of any al-

together, that practice or encourage racial

discrimination. There are very few, and here

the picture is a little more cloudy with re-

gard to sexual discrimination. Moreover, it is

settled by case law, that outside the area of

hiring ministers, the claims of sexual equali-

ty are going to prevail over religious exemp-

tions. That is even for religious institutions,

to say nothing of for-profit institutions. I

don’t know of a single for-profit institution

that has ever raised a successful religious

freedom claim as against a civil rights claim.

We can go into later, if there are questions,

about how it would apply to marital status

discrimination and gay rights discrimina-

tion, but I would expect largely that same

pattern would hold.

Religious Liberty Protection Act of 1998: Hearing on

H.R. 4019 Before the Subcomm. on the Constitution &

H. Comm. on the Judiciary, 105th Cong. 56 (1998)

(statement of Marc Stern, Director, Legal Depart-

ment, American Jewish Congress).

15

And yet another RLPA proponent and religious

liberty expert assured members on questions involv-

ing employers:

As the employer becomes larger, or the na-

ture of the work becomes less integrated

with religious mission, this balance of inter-

ests changes. Soon it becomes impossible for

the employer to show a substantial burden

on religious exercise, and the state’s interest

in regulation grows in direct proportion to

the number of jobs at issue.

Religious Liberty: Hearing on Issues Relating to

Religious Liberty Protection, and Focusing on the Con-

stitutionality of a Religious Protection Measure Before

the H. Comm. on the Judiciary, 106th Cong. 153

(2000) (responses of Douglas Laycock to Questions

from Senator Kennedy). This certainly does not line up

with the court’s determination in Hobby Lobby, offering

RFRA protections to an employer operating six hun-

dred stores and employing thousands of employees.

Foretelling where RFRA would land, the Dissent-

ing Views from the House Judiciary Committee Report

on RLPA concluded:

By imposing an across-the-board strict scru-

tiny standard, RLPA will be used to attack

state and local civil rights laws, child welfare

laws and a host of other laws that may not

be compelling but nonetheless serve im-

portant governmental functions. In the end,

we find ourselves faced with a bill that even

the Sherbert Court may have recognized as

16

dangerous. As that Court expressed it, “Even

when []} action is in accord with one’s reli-

gious convictions, it is not totally free from

legislative restrictions.”

H.R. Rep. No. 106-219, at 38 (1999).

In the end, RLPA passed the House after the

defeat of an amendment offered by Rep. Nadler, a

RFRA supporter, to prevent harm to civil rights. But

the vote was far from unanimous, showing the frac-

turing of support for a clean RFRA bill: 306 in favor,

118 in opposition, and 10 not voting. H.R. 1691.

Clearly, the broad-based coalition of interests and

support for RFRA from members unraveled. As a

result of the civil rights concerns, the Senate never

voted on RLPA but rather considered a narrower

version, which re-enacted RFRA, but only as applied

to federal law, and the Religious Land Use and Insti-

tutionalized Persons Act, S. 2869 106th Cong. (2000)

(enacted); 146 Cong. Rec. S7774-01 (2000), (“RLUIPA”),

which only applies to state laws involving land use

and prisons.

As Senator Reid noted in his remarks on the

Senate floor in support of the more limited legisla-

tion:

While the companion measure [H.R. 1691]

passed the House of Representatives over-

whelmingly in July 1999, the legislation

stalled in the Senate when legitimate con-

cerns were raised that RLPA, as drafted,

17

would supersede certain civil rights, particu-

larly in areas relating to employment and

housing. These concerns were most troubling

to the gay and lesbian community. Discrimi-

nation based upon race, national origin, and

to lesser certainty, gender, would have been

protected, regardless of RLPA, because the

courts have recognized that preventing such

discrimination is a sufficient enough compel-

ling government interest to overcome the

strict scrutiny standard that RLPA would

apply to religious exercise. Sexual orienta-

tion and disability discrimination, however,

have not been afforded this high level of pro-

tection. Mr. President, as I was considering

the merits of the Religious Liberty Protection

Act, these concerns weighed heavily upon my

mind... . As I stated earlier, protecting hard

fought civil rights, including those which

prohibit discrimination based upon sexual

orientation, played an important role in my

desire to pursue a more narrowly-tailored re-

ligious freedom measure. I am proud to have

had the opportunity to work with Senators

HATCH and KENNEDY to accomplish the

worthwhile endeavor of protecting legitimate

civil rights while at the same time protecting

the free exercise of religion.

Religious Land Use and Institutionalized Persons Act

of 2000, 146 Cong. Rec. S7774-01 (2000) (statement of

Sen. Harry Reid).

To summarize, it was widely agreed that RFRA

as applied to the federal civil rights laws should not

18

trump those laws. It was only on the basis of these

assurances and understanding that led the concerned

members to clear the way for the new RFRA and

RLUIPA.

In a letter to Senator Hatch to support the nar-

rower legislation, the Clinton Administration’s De-

partment of Justice noted the civil rights implications

of RLPA, stating:

In addition, apparently there has been some

question about the potential effect of S. 2869

on State and local civil rights laws, such as

fair housing laws. Although prior legislative

proposals implicated civil rights laws in a

way that concerned the Department, we be-

lieve S. 2869 cannot and should not be con-

strued to require exemptions from such laws.

Id. at S7776 (letter from Robert Rabin, Assistant

Attorney General to Sen. Hatch).

Today, the fears and misgivings on the scope of

RFRA continue to grow. One only needs to look at the

recent threatened state boycotts that garnered na-

tional attention over state legislative RFRAs in

Arizona, Indiana, and Arkansas as indication of the

controversy that the once broadly supported legisla-

tion enjoyed as a measure of the complicated tempest

that is RFRA. Campbell Robertson & Richard Pérez-

Pefia, Bills on ‘Religious Freedom’ Upset Capitols in

Arkansas and Indiana, N.Y. Times, March 31, 2015,

http?//www.nytimes.com/2015/04/0 1l/us/religious-freedom-

restoration-act-arkansas-indiana.html?_r=0. Note that

19

state action on RFRAs intensified leading up to and

in response to the Obergefell v. Hodges, 578 U.S. __,

135 S. Ct. 2584 (2015), case as a preemptive strike

against an anticipated expanse of gay rights. As

Congress abandoned re-enacting a RFRA applicable

to the states in H.R. 1691 almost sixteen years ago, it

has set the stage for the battle in the states over

RFRAs even now.

There are some who have made the argument

that Congress has taken a hand’s-off approach to

RFRA with no attempt to amend or modify its scope,

implying that there have been no concerns or objec-

tions to its application or interpretation. This is not

only an inaccurate assertion, but it also fails to rec-

ognize the deep concern by members who feel that

legisiation must now be crafted to deal with the

misapplication of RFRA. For instance, the Equality

Act of 2015 was recently introduced to explicitly

prohibit discrimination based on sexual orientation

and gender identity in hiring, employment, educa-

tion, housing, credit, and public accommodation.‘ This

landmark bi-partisan civil rights legislation specifi-

cally carves out RFRA to ensure that it does not apply

to the bill’s provisions recognizing that RFRA is a

growing threat to the expansion of civil rights on the

basis of sexual orientation and gender identity.

Equality Act, H.R. 3185, 114th Cong. (2015).

* This legislation enjoys bipartisan support and has 172

co-sponsors.

20

While Hobby Lobby, and potentially this case if

Petitioners prevail, threatens to undermine the rights

of female employees not to be discriminated against

based on religion or gender, these threats to civil

rights are only the first to emerge from RFRA’s Pan-

dora’s Box when interpreted broadly and aggressively.

In 1999, some House Judiciary Committee members

warned, “If the Smith decision stands for anything, it

stands for the Court’s determination that an across-

the-board strict scrutiny standard would work a

substantial injustice to other important but not

compelling government interests.” H.R. Rep. No. 106-

219 (1999-2000). Yet, even then, members could not

have foreseen Hobby Lobby or the challenge at issue

in this case as to whether the simple act of filling out

a form constitutes an undue burden.

Due to the Hobby Lobby reasoning and if this

Court were to rule in favor of Petitioners in this case

along the same lines, the rights of female employees

not to be discriminated against based on religion or

gender will be severely undermined. Additionally, a

decision in the Petitioners’ favor interferes with

Congressional intent and affirmation of the policy to

extend contraception coverage to women as a key

component of good health care policy, which was only

arrived at after months-long deliberations, numerous

hearings, and consultations with a wide spectrum of

experts, including many health experts.

21

II. The Hobby Lobby Interpretation of RFRA

Threatens the Separation of Powers by

Delegating Lawmaking Power to the Une-

lected Judiciary

When the Court engages in constitutional analy-

sis, the structure of the Constitution and the re-

quirement of mutual respect for the other branches

play a significant role in the Court’s reasoning, overt-

ly or sub silentio. Nixon v. United States, 506 U.S.

224, 240-43 (1993). The constitutional free exercise

cases were routinely decided by this Court’s deference

to the hard policy judgments that Congress or the

military or prison authorities needed to make, or, in

other words, with a healthy humility for its institu-

tional limitations when it comes to policymaking.

This was true across a wide landscape of legal arenas.

See, e.g., Bowen v. Roy, 476 U.S. 693, 700-01 (1986)

(social security system); Goldman v. Weinberger, 475

U.S. 503, 507-10 (1986) (military uniform); United

States v. Lee, 455 U.S. 252, 261 (1982) (social security

tax system); Prince v. Massachusetts, 321 U.S. 158,

166 (1944) (child labor law); Jacobson v. Massachu-

setts, 197 U.S. 11, 27-31 (1905) (mandatory smallpox

vaccination).

When the Court’s free exercise jurisprudence was

redirected by Congress into a federal statute, the

Court’s role in these cases changed from one of

healthy deference and respect for its sister branches

to a statutory interpretation divorced from the

22

Court’s known shortcomings. The most serious consti-

tutional mischief has arisen in this Court’s interpre-

tation of the “least restrictive means” test.

In Hobby Lobby, the Court majority was comfort-

able not identifying the government’s “compelling

interest” in the Affordable Care Act’s contraception

mandate as it applies to for-profit employers, 134

S. Ct. at 2803, but then concluded that the “least

restrictive means” test granted it carte blanche to

second-guess how Congress and the Executive had

crafted a religious exemption. 134 S. Ct. at 2802.

A majority of the Court confidently concluded

that a “least restrictive means” would be for the

government itself to pay for women’s contraception in

circumstances where the for-profit employer would

not due to religious reasons. 134 S. Ct. at 2780. This

conclusion was not economically or politically feasi-

ble. It was plainly not an option that Congress could

have or would have chosen. But the Court majority

took RFRA’s language as an opening to set public

policy, and not to defer to legislative or executive

judgment, or political reality. The failure of deference

to the legislative process threatens the separation of

powers.

This extraordinary grab for power was repeated

in Holt v. Hobbs, 135 S. Ct. 853 (2015), when this

Court interpreted the same standard and, in the

course of doing so, abandoned its previous wholesome

deference to the executive branches operating the

prison systems. See, e.g., O’Lone v. Estate of Shabazz,

23

482 U.S. 342 (1987). Instead, the Court lectured

prison authorities on how long a beard must be to

form a security threat. Hobbs, 135 S. Ct. at 866. This

new tone is quite distinct from the Court’s interpreta-

tion of the same provisions in Cutter v. Wilkinson, 544

U.S. 709, 722 (2005), where a unanimous Court

warned lower courts to defer to prison officials on

matters of safety and security.

Of the Court’s prior cases, the Hobby Lobby

reasoning regarding the “least restrictive means”

hearkens back to the reasoning in Lochner v. New

York, 198 U.S. 45 (1906), because in both cases the

Court put itself in the position of invasively second-

guessing public policy. As with Lochner, the RFRA

interpretation starting in Hobby Lobby has the capac-

ity to raise questions about the Court’s legitimacy and

authority.

The Lochner approach was deployed by the Court

to block social reforms for the protection of rights for

workers, and particularly women and children,

Hammer v. Dagenhart, 247 U.S. 251 (1918) (holding

federal regulation of child labor unconstitutional),

workers in hazardous working conditions, Lochner,

198 U.S. 45 (1905) (holding state regulation of work

hours unconstitutional), and women’s rights, Adkins

v. Children’s Hospital, 261 U.S. 525 (1923) (holding

minimum wage law for women unconstitutional);

Glen E. Summers, Private Property Without Lochner:

Toward a Takings Jurisprudence Uncorrupted by

Substantive Due Process, 142 U. Pa. L. REv. 837,

863-84 (1993) (“when the judiciary acts as a

24

‘superlegislature’ ... it serves to destroy the deviate

constitutional scheme of separation of powers, and, in

so doing, to undermine the intrinsic value and integ-

rity of the democratic process.”); Martha A. Field,

Garcia v. San Antonio Metropolitan Transit Authori-

ty: The Demise of a Misguided Doctrine, 99 Harv. L.

REV. 84, 94 (1985) (when choosing itself, “the court

becomes vulnerable to a charge that it is acting as a

legislature. The outcome, based on past experience, is

to harm both the Court and the country.”).

This Court eventually abandoned the Lochner

approach as beyond its institutional competency.

United States v. Carolene Products Co., 304 U.S. 144,

147 (i938); Williamson v. Lee Optical of Oklahoma

Inc., 348 U.S. 483, 488 (1955); West Coast Hotel Co. v.

Parrish, 300 U.S. 379, 392 (1937); Nebbia v. New

York, 291 U.S. 502, 525 (1934).

That institutional capacity has not changed since

then, but the RFRA test of “compelling interest” and

“least restrictive means” for laws that are neutral and

generally applicable puts the courts in this untenable

position where it is least capable.

Thus, by imposing super strict scrutiny on the

government in cases involving neutral, generally

applicable statutes, RFRA, at least as interpreted by

this Court in Hobby Lobby, delegates lawmaking

power to the courts and, therefore, violates the sepa-

ration of powers. See Mistretta v. United States, 488

U.S. 361, 371-72 (1989) (“we have long insisted that

‘the integrity and maintenance of the system of

25

government ordained by the Constituted’ mandate

that congress generally cannot delegate its legislative

power to another branch.”) (citing Field v. Clark, 143

U.S. 649, 692 (1892)); J.W. Hampton, Jr. v. United

States, 276 U.S. 394, 406 (1928) (“It is a breach of the

national fundamental law if Congress gives up its

legislative power and transfers it to the President, or

to the judicial branch.”).

The same constitutional error arises when reli-

gious entities like the Petitioners ask the courts to re-

craft and micromanage religious exemptions under

the Hobby Lobby reasoning. This Court in Smith

made clear that in our democratic process, the legis-

lature is in the better and the traditional position to

shape religious exemptions and held that the Consti-

tution does not give the courts that same power. Yet,

the Hobby Lobby majority reversed the appropriate

role of the courts and legislature in this arena.

Members of Congress predicted this potential

constitutional pitfall — particularly when civil rights

are at stake — while considering RLPA, which was

touted as a “fix” for the Boerne invalidation of RFRA.

This is the other side of the separation of powers coin

that forbids Congress from enacting legislation that is

a constitutional amendment, as RFRA is. Boerne v.

Flores, 521 U.S. 507, 516, 529, 536 (1997) (“Shifting

legislative majorities could change the Constitution

and effectively circumvent the difficult and detailed

amendment process contained in Article V.”).

26

III. The Petitioner’s Theory Would Result in a

RFRA Interpretation Unconstitutional as

Applied

The Petitioner in this case is making such an

extreme claim that it potentially violates more than

one constitutional prohibition.

This is not a case where RFRA is being used to

attack a law with no exemption, but rather it is being

deployed for the purpose of re-crafting the existing

accommodation to the benefit of Petitioner’s religious

worldview. Nor should it be ignored that the Petition-

ers’ request would inflict harm on female employees.

This Court has never found that notifying the gov-

ernment of a need for religious accommodation is a

substantial burden on religion. This was certainly not

an argument ever raised or considered when ejther

RFRA were enacted in 1993 or 2000.

This argument against notifying the government

of a need for accommodation is, on its face and at its

base, specious, as the vast majority of federal appel-

late courts have held. Grace Schools v. Burwell, 801

F.3d 788, 791 (7th Cir. 2015); Catholic Health Care

Sys. v. Burwell, 796 F.3d 207, 216-26 (2d Cir. 2015);

Little Sisters of the Poor Home for the Aged v. Bur-

well, 794 F.3d 1151, 1173-74 (10th Cir. 2015); Michi-

gan Catholic Conference v. Burwell, 755 F.3d 372 (6th

Cir. 2014); East Texas Baptist Univ. v. Burwell, 793

F.3d 449, 459 (5th Cir. 2015); Geneva Coll. v. Sec’y

United States Dep't of Health & Human Servs., 778

F.3d 422, 442 (3d Cir. 2015); Priests for Life v. United

27

States Dep't of Health & Human Servs., 772 F.3d 229,

256 (D.C. Cir. 2014). But see Sharpe Holdings v.

Burwell, 801 F.3d 927 (8th Cir. 2015).

To hold to the contrary turns RFRA into a sword

that believers can wield against the thousands of

religious accommodations already in place in federal

law — to make them more and more extreme by

judicial fiat.

In Smith, this Court correctly recognized that

practice-specific religious exemptions have a long

history and that there is every reason to expect

lawmakers to be willing to provide exemptions in the

future. “Values that are protected against govern-

ment interference through enshrinement in the Bill of

Rights are not thereby punished from the political

process ... It is [] not surprising that a number of

States have made an exception to their drug laws for

sacramental peyote use.” Smith, 49 U.S. at 890. The

permissive legislative accommodation approved in

Smith (unlike the blunderbuss approach of RFRA),

turns on the assumption that only the lawmakers can

adequately consider how a particular exemption

harms public policy or others, or does not.”

* This argument applies whether the law is a result of the

legislative process or executive enforcement of a complex

legislative scheme wherein Congress has delegated enforcement

and application of the law to the executive. See, e.g., Whitman v.

American Trucking Association, 531 U.S. 457, 472 (2001)

(rejecting nondelegation doctrine as between the legislative and

executive branches). It is common for the executive branch to

(Continued on following page)

28

Lawmakers are in the position to make that call

in the best interest of the public. The courts simply

are not. Therefore, if this Court were to interpret

RFRA as Petitioners demand, it would violate the

separation of powers.

°

CONCLUSION

At the time of RFRA’s passage in 1993, the broad-

based coalition of its supporters sought only to enact

a statute that restored what was perceived as the

pre-Smith standard for religious liberty claims. It

was certainly never intended to allow one group to

use its religious exercise as a sword to usurp the

rights of others. It should be noted that Congress

rejected the notion that RFRA should be used in such

a way when it failed to re-enact it as applied to the

states, or RLPA, in 1999.

RFRA, as presented by the Petitioners’ claim,

does not reflect what its supporters intended at the

recognize religious exemptions that were not already built into

the original law. See, eg., Gonzales v. O Centro Espirita

Beneficente Uniao do Vegtal, 546 U.S. 418, 433 (2006) (“21

U.S.C. § 812(b)\(1) applies equal measure to the mescaline in

peyote, yet both the Executive and Congress itself decreed an

exception from the Controlled Substances Act for Native Ameri-

can religious use of peyote.”); Exemptions Based on Religious

Dietary Laws, 9 C.F.R. § 381.111 (2016); Accommodations to

Religious Observance and Practice, 41 C.F_R. § 381.11 (2016); 29

C.F.R. § 1605.2(cX1) (2016).

29

time of enactment. Moreover, such an interpretation

threatens to violate the separation of powers. Accord-

ingly, Amicus Curiae respectfully requests this Court

reject the extreme reading of RFRA proposed by

Petitioners, which would have the immediate effect of

curtailing the rights of female employees. Further,

such a reading would open the door for RFRA, in the

name of religious exercise, to inflict harm against

third parties across a broad array of important issues.

Therefore, I strongly urge the Court to instead inter-

pret RFRA in light of its legislative history and the

intent of its bipartisan supporters.

Respectfully submitted,

Marc! A. HAMILTON, Esq.

Counsel of Record

36 Timber Knoll Drive

Washington Crossing, PA 18977

(267) 907-3995

hamilton.marci@gmail.com

Counsel for Amicus Curiae

February 17, 2016