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

Suprene Sit, US

FILED

JAN 11 2055

OfMICF OF THE Crt

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

15-35, 15-106, 15-119, & 15-191

IN THE

Supreme Court of the United States

DAVID A. ZUBIK, ET AL..,

Vv.

SYLVIA BURWELL, ET AL.

On a Writ of Certiorari to the United States Court

of Appeals for the Third Circuit

Brief of the Southern Baptist Theological

Seminary, the Ethics & Religious Liberty

Commission, the International Mission Board,

and Dr. R. Albert Mohler, Jr. as amici curiae in

support of Petitioners

MILES E. COLEMAN DEREK GAUBATZ

Counsel of Record Int'l Mission Board

JAY T. THOMPSON 3806 Monument Avenue

Nelson Mullins Riley & Richmond, VA 23230

Scarborough, LLP (800) 219-1575

1320 Main Street

Columbia, SC 29201

miles.coleman@nelsonmullins.com

(803) 799-2000

Counsel for Amici Curiae

IT.

IIT.

TABLE OF CONTENTS

Christian doctrine and Southern Baptist

belief require that faith govern every

aspect of a Christian’s life..........................

Scripture and Southern Baptist doctrine

teach that life begins at conception and

therefore abortion is the taking of

innocent human life and is a grave moral

Christian doctrine and Southern Baptist

teaching state it is a sin for a Christian

to enable or aid another in doing what

the Christian believes to be wrong............

Requiring Christians to choose between

violating the Government’s regulations

or violating their sincerely held religious

beliefs substantially burdens _ their

ee

EES meee ee ene RED

... 16

TABLE OF AUTHORITIES

Cases Page

Attorney Gen. v. Desilets,

636 N.E.2d 233 (Mass. 1994) ...................ccccceeeeees 19

Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520 (1993) ................... 23

Employment Div., Dept. of Human

Resources v. Smith, 494 U.S. 872 (1990) ............. 22

Gilardi v. U.S. Dept. of Health and

Human Servs., 733 F.3d 1208 (D.C.

ERS Pte et At ae 18

Hanna v. Secretary of the Army,

B13 F.3d 4 (lat Cir. BOOB)........cccsccsccccccccsccsscceseeees 17

Hobby Lobby Stores, Inc. v. Sebelius,

723 F.3d 1114 (10th Cir. 2013) ................ 18-19, 23

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC, 132 S. Ct.

TE Eee 4

Korte v. Sebelius,

735 F.3d 654 (7th Cir. 2013) .....................cc.ceeseeee 6

O’Bryan v. Bureau of Prisons,

349 F.3d 399 (7th Cir. 2003) ...............ssccsrsssseseees 22

iv

Sherbert v. Verner,

eee 22, 24

Spencer v. World Vision, Inc.,

633 F.3d 723 (9th Cir. 2011) ..................ccecccesseeeees 4

State by Cooper v. French,

460 N.W.2d 2 (Minn. 1990) .....................:0cceceeeees 17

Thomas v. Anchorage Human Rights

Comm'n, 165 F.3d 692 (9th Cir. 1999).................. 8

Thomas v. Review Bd. of Indiana Empl.

Sec. Div., 450 U.S. 707 (1981).................. 21, 23-24

United States v. Lee,

I el 23

Wisconsin v. Yoder,

I i a latina 22

Rules

oe RD 8 ee weneeeeee 23

78 Fed. Reg. 39870 (July 2, 2013) ...................0.ee eee 23

Statutes

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Other Authorities

Aaron Schwabach, Thomas Jefferson,

Slavery, and Slaves, 33 T. Jefferson

| EE AEE I De 7

The Baptist Faith & Message 2000,

chaise hinge dateitctclenaaal 4

Carl F.H. Henry, Has Democracy Had

ited dela sicritapcieeialatiatl ania ecatiananeetie 15

Carl F.H. Henry, Twilight of a Great

TE 15

ERLC Letter to Congress on No

Taxpayer Funding for Abortion Act,

7 gg REE eee 15

Isaac Watts, The Poetical Works of Isaac

eer 4

John Calvin, Commentaries on the Last

Four Books of Moses, Vol. 3 (tr.

Te 14

John Foxe, Acts and Monuments (1563).........

John Leland, The Right of Conscience

EE

Justo L Gonzalez, The Story of

Christianity, Vol. 1 (1984).................0...0.04.

The Large Catechism by Martin Luther

(1529), reprinted in Triglot Concordia:

The Symbolical Books of the Ev.

Lutheran Church (1921)................cccccceee00es

Mark L. Rienzi, The Constitutional Right

Not to Kill, 62 Emory L.J. 121 (2012)........

Mark S. Scarberry, John Leland and

James Madison: Religious Influence on

the Ratification of the Constitution

and on the Proposal of the Bill of

Rights, 113 Penn St. L. Rev. 733

TE canticsidnastniéansnnnsdpioneanintinnnsninsntstnmnasnadane

Martin Luther, Luther’s Works, Vol. 4:

Lectures on Genesis Chapters 21-25

(tr. Jaroslav Pelikan, 1999)........................

Martin Luther, Luther’s Works, Vol. 33:

Career of the Reformer III (1972)...............

R. Albert Mohler, Jr., “Abortion is as

American as Apple Pie’—The

Culture of Death Finds a Voice ..................

vill

R. Albert Mohler, Jr., “I Feel Super Great

About Having an Abortion”—The

Culture of Death Goes Viral ....................0.seese00000 15

R. Albert Mohler, Jr., So What if

Abortion Ends a Life? Rare Candor

I I iccncinnnicnstncccinesbaniinnanenes 15

Religious Freedom Restoration Act ............... 2, 20—22

Thomas Vincent, An Explanation of the

Assembly’s Shorter Catechism (1806) .................. 17

Scriptures

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]

INTEREST OF AMICI CURIAE!

The Southern Baptist Theological Seminary

(“SBTS”) is the oldest of the six seminaries affiliated

with the Southern Baptist Convention (“SBC”) and is

one of the world’s largest theological seminaries,

with a full-time enrollment of over 2,000 students.

Located in Louisville, Kentucky, SBTS currently

enrolls students from all 50 states and 41 countries.

SBTS exists to serve the churches of the SBC by

training, educating, and preparing ministers of the

gospel for faithful service. From its founding in 1859

until the present day, the SBTS charter asserts that

“God alone is Lord of the conscience; and He hath left

it free from the doctrines and commandments of

men, which are in anything contrary to His word, or

not contained in it.” SBTS believes that the

government mandate at issue in this petition

infringes on that venerable tradition of religious

liberty and freedom of conscience.

The Ethics and_ Religious Liberty

Commission (“ERLC”) is an entity of the SBC, the

nation’s largest Protestant denomination, with over

46,000 autonomous churches and nearly 16 million

members. The ERLC is dedicated to engaging the

culture with the gospel of Jesus Christ and speaking

to issues in the public square for the protection of

religious liberty and human flourishing. The ERLC is

charged by the SBC with addressing public policy

! The parties’ counsel consented to the filing of this brief.

Neither a party nor its counsel authored this brief in whole or

in part. No person or entity, other than the amici curiae or their

counsel made a monetary contribution to the preparation and

submission of this brief.

2

affecting such issues as freedom of speech, religious

freedom, marriage and family, and the sanctity of

human life. Religious freedom is an indispensable,

bedrock value for Southern Baptists. The ERLC fears

the government mandate at issue threatens the

Constitution’s guarantee oof freedom from

governmental interference in matters of faith, a

crucial protection upon which SBC members and

adherents of other faiths depend as they follow the

dictates of their conscience in the practice of their

faith.

The International Mission Board (“IMB”) is

an entity of the SBC dedicated to taking the gospel of

Jesus Christ to all nations and peoples in fulfillment

of the Great Commission found in Matthew 28:18-20.

To achieve its vision of seeing a multitude of every

people, tribe, and tongue from around the world come

to worship and exalt Jesus Christ as Lord and

Savior, the IMB employs more than 5,000 Christian

workers.

Dr. R. Albert Mohler, Jr. is the President of

SBTS, the flagship school of the SBC and one of the

largest seminaries in the world. Dr. Mohler has been

recognized as one of the leading intellectuals among

American evangelicals, has been quoted in the

nation’s leading newspapers, and has appeared on

numerous news and commentary _ television

broadcasts. He has authored several books and is the

editor-in-chief of The Southern Baptist Journal of

Theology.

3

SUMMARY OF ARGUMENT

Requiring Christians—including the Southern

Baptist entities among the Petitioners*—to choose

between violating the Government’s regulations or

violating their sincerely held religious beliefs

substantially burdens their exercise of religion in

violation of the Religious Freedom Restoration Act

and the First Amendment to the United States

Constitution. A fundamental aspect of Christian

doctrine is its requirement that faith must govern

every aspect of a Christian’s life. As a matter of

scriptural command, conscience, doctrinal tradition,

and Southern Baptist teaching, the exercise of the

Christian religion must guide and determine a

Christian’s decisions, words, and deeds in every facet

of life, including seemingly “secular” matters like the

administration of insurance and the provision of

certain drugs and devices.

Because of the holistic nature of the Christian

faith, Baptists throughout American history have

discerned a spiritual obligation to interact with and

influence the culture outside the church doors. This

has historically included providing for and protecting

the oppressed or defenseless, including the protection

of innocent and unborn human life. Southern

Baptists have spoken clearly in opposition to

abortion and in support of their belief that life begins

at conception, beliefs that are grounded in the words

of Holy Scripture.

2 The Southern Baptist Petitioners in these suits include

Guidestone Financial Resources, Reaching Souls International,

East Texas Baptist University, Houston Baptist University,

Truett-McConnell College, and Oklahoma Baptist University.

4

In light of the broad scope of the Christian faith

and the Southern Baptist theological opposition to

abortion, the Petitioners cannot, as a matter of

doctrine and conscience, distribute abortion-inducing

drugs and devices directly or indirectly by

authorizing, obligating, or incentivizing their own

insurers or third-party administrators to use

Petitioners’ health plans to provide such drugs and

devices to others. Scripture and Southern Baptist

belief prohibit not only direct and personal

wrongdoing, but also complicity in doing what the

Christian believes to be sin. Christian doctrine

teaches that Christians who knowingly aid or abet

another's wrongdoing have themselves done wrong.

Accordingly, a statute or regulation requiring a

Southern Baptist individual or ministry to be

complicit in conduct the Christian faith teaches is

morally wrong forces that person or ministry into an

impossible choice—to either violate conscience or

violate the law—and imposes a substantial burden

on the exercise of religion.

ARGUMENT

I. Christian doctrine and Southern Baptist

belief require that faith govern every aspect

of a Christian’s life.

A fundamental aspect of Christianity is its

requirement that the Christian faith govern all

aspects of the believer's life. This teaching is drawn

directly from the Holy Scripture and stems from the

Christian belief that God’s sovereignty extends over

every area of human endeavor. See, e.g., Psalm 24:1

(“The earth is the Lord’s and the fullness thereof, the

5

world and those who dwell therein.”).* In the words

of the English theologian and poet Isaac Watts, God’s

“love, so amazing, so divine, demands my life, my

soul, my all.” Isaac Watts, The Poetical Works of

Isaac Watts, Vol. IV 173 (1782).

Accordingly, Christianity has never limited its

reach merely to matters of theology and ceremonial

observance. See, e.g., Hosanna-Tabor Evangelical

Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694,

713 (2012) (Alito, J., concurring) (agreeing with the

Court’s unanimous opinion that the job duties of a

Lutheran minister engaged in education “reflected a

role in conveying the Church’s message and carrying

out its mission” and observing that “[rjeligious

teachings cover the gamut from moral conduct to

metaphysical truth.”); Spencer v. World Vision, Inc.,

633 F.3d 723 (9th Cir. 2011) (per curiam) (finding a

Christian humanitarian organization “working with

children, families and their communities worldwide

to reach their full potential by tackling the causes of

poverty and injustice” was a religious activity); see

also The Baptist Faith & Message 2000, Article XIII

(“God is the source of all blessings, temporal and

spiritual; all that we have and are we owe to Him.

[Christians] are therefore under obligation to serve

Him with their time, talents, and material

possessions; and should recognize all these as

entrusted to them to use for the glory of God and for

helping others.”), available at http://www.sbc.net/

bfm2000/bfm2000.asp (last visited January 7, 2016).4

8 All quotations of Scripture herein are taken from the Holy

Bible, English Standard Version.

4 The Baptist Faith and Message is the statement of faith of the

SBC and summarizes Southern Baptist beliefs.

6

Rather, Christianity teaches that one’s faith

influences even those areas of life that appear

superficially unrelated to worship, prayer, or

theology. See, e.g., Colossians 3:17 (“And whatever

you do, in word or deed, do everything in the name of

the Lord Jesus.”). Indeed, Christianity teaches there

is spiritual significance in every part of life, including

seemingly mundane acts like eating, drinking, and

working. I Corinthians 10:31 (“So whether you eat or

drink or whatever you do, do all for the glory of

God.”); Colossians 3:23-24 (“Whatever you do, work

heartily, as to the Lord.”); Ecclesiastes 3:1-13 (noting

“(flor everything there is a season, and a time for

every matter under heaven” and that “everyone

should eat and drink and take pleasure in all his

toil—this is God’s gift to man”). These holistic

demands of Christianity require consistency in

familial, business, and social relations and are not

limited to sacerdotal, ecclesial, or ritual matters.

This integration of a Christian’s entire life in

relation to God is an outgrowth of the Christian

gospel, which provides that God, completely

righteous and without sin, by His infinite grace,

justifies man who is by nature unrighteous and

sinful. This cannot be accomplished by any work or

merit by man to somehow achieve good standing

with God, but instead is accomplished by and

through the work of Jesus Christ’s death on the

cross. Thus, by faith alone in Christ alone, man is

counted righteous by God.

This doctrinal requirement that a Christian must

pursue all aspects of his or her life in obedience to

Christ compels Christians to do more than give mere

intellectual assent. The Christian faith requires not

only belief, but also conduct, and this requirement

7

extends to every facet of the Christian’s life. See

James 2:17 (“So also faith by itself, if it does not have

works, is dead.”); Romans 12:1 (urging Christians,

“in view of God’s mercy,” to devote their entire beings

to Him as “true and proper worship”); see also Korte

v. Sebelius, 735 F.3d 654, 681 (7th Cir. 2013) (noting

religious belief is not confined to the home and the

house of worship because “[rjeligious people do not

practice their faith in that compartmentalized way.”);

The Baptist Faith & Message 2000, Article XV (“All

Christians are under obligation to seek to make the

will of Christ supreme in our own lives and in human

society. Every Christian should seek to bring

industry, government, and society as a whole under

the sway of the principles of righteousness, truth,

and brotherly love.”).

Scripture and history are replete with instances

in which Christian believers who were presented

with a choice either to violate their consciences by

complying with the state’s demands or to face

draconian penalties chose to maintain the integrity

of their faith in every aspect of life and accept the

consequences. See generally John Foxe, Acts and

Monuments (1563) (recounting anecdotes of early

Protestant martyrs). For example, the Old Testament

Scripture recounts the story of three Hebrew men

who refused to worship an image of Babylonian King

Nebuchadnezzar, despite the threat of execution for

noncompliance. Daniel 3:1-30. Shadrach, Meshach,

and Abednego were cast “into the burning fiery

furnace” for refusing to worship the king’s image. Id.

Although the Babylonian government conceived the

state’s requirement as merely an act of political

loyalty, the three young men understood it as a

8

requirement to violate their faith through idolatry.

Id.

Similarly, the second-century Christian martyr

Polycarp was willing to suffer death for refusing to

state “Caesar is Lord.” See Justo L Gonzalez, The

Story of Christianity, Vol. 1, 43-44 (1984). To the

Roman government, the law was merely a political

issue, but to Polycarp, it was an issue of idolatry.

Likewise, the Protestant reformer Martin Luther,

when asked to recant his beliefs, famously stated to

Emperor Charles V, “[M]y conscience is captive to

the Word of God. I cannot and I will not recant

anything, since it is neither safe nor right to go

against conscience. May God help me. Amen.” Martin

Luther, Luther’s Works, Vol. 33: Career of the

Reformer IIT (1972).

Baptist history in America abounds with

examples of the doctrinal connection between faith

and practice, even when that faith compelled action

that ran contrary to the social mores of the day. For

example, Roger Williams—founder of the first

Baptist church in America—founded the only colony

to prohibit slavery and tolerate religious dissenters.

See Aaron Schwabach, Thomas Jefferson, Slavery,

and Slaves, 33 T. Jefferson L. Rev. 1, 14 n. 73 (2010)

(noting that the colony of Rhode Island, under

Williams’ leadership, “prohibited slavery, tolerated

Quakers and Jews, and endeavored to maintain

peaceful relations with the Pequod Indians, who had

been the victims of massacre and enslavement by the

Massachusetts settlers”). Similarly, John Leland, a

widely known Baptist minister in colonial Virginia,

was a staunch abolitionist and a firm voice in

support of religious liberty, free from government

coercion and control:

9

“Does a man upon entering into social

compact surrender his conscience to

that society to be controled by the laws

thereof ? I judge not, for the

following reasons:

1. Every man must give an account of

himself to God, and therefore every

man ought to be at liberty to serve God

in that way that he can best reconcile it

to his conscience. If government can

answer for individuals at the day of

judgment, let men be controled by it in

religious matters; otherwise let men be

free.

John Leland, The Right of Conscience Inalienable

(1791), available at http://berkleycenter.georgetown.

edu/resources/quotes/john-leland-the-right-of-conscie

nce-inalienable-on-religion-as-a-matter-between-god-

and-individuals (last visited January 7, 2016); see

also Mark S. Scarberry, John Leland and James

Madison: Religious Influence on the Ratification of

the Constitution and on the Proposal of the Bill of

Rights, 113 Penn St. L. Rev. 733 (2009).

In light of these Scriptural commands, Christian

doctrine, and Baptist tradition, it is no surprise that

the types of work done by Petitioners, amici, and

related organizations—e.g., funding and organizing

international missions, educating students and

church members from a Christian perspective, and

providing physical and spiritual care for orphans and

widows—are, in fact, spiritual obligations that are

ministerial and sacred in nature. See, e.g., Matthew.

25:37-40; Matthew 28:19; James 1:27; see also The

Baptist Faith and Message 2000 Art. XII (“An

10

adequate system of Christian education is necessary

to a complete spiritual program for Christ’s people.”);

The Baptist Faith and Message 2000 Art. XV (“We

should work to provide for the orphaned, the needy,

the abused, the aged, the helpless, and the sick.”);

SBC Resolution On Adoption and Orphan Care, 2009

(“[Wje encourage local churches to champion the

evangelism of and ministry to orphans around the

world.”), available at http://www.sbc.net/resolutions/

1194 (last visited January 7, 2016). In light of that

spiritual duty, it is not surprising that Petitioners

refuse to quail before the government’s demand to

violate conscience or suffer government sanction.

In sum, because Christian doctrine requires that

faith govern every aspect of a Christian’s life and

teaches that a Christian’s conscience is captive to the

word of God, Christians must act in accordance with

their beliefs and in integrity of conscience in every

aspect of life. Simply stated, the exercise of Christian

faith must, as a matter of scriptural teaching, church

tradition, and denominational doctrine, guide and

determine a Christian’s decisions, choices, words,

and deeds, both in private and in every facet of life.

II. Scripture and Southern Baptist doctrine

teach that life begins at conception and

therefore abortion is the taking of innocent

human life and is a grave moral wrong.

Southern Baptists have spoken clearly in

opposition to abortion and in support of their belief

that life begins at conception. These beliefs are

grounded in the words of Scripture, which teach that

God’s knowledge of, care for, and sovereign plan for

each person begins long before birth. See Jeremiah

1:4-5 (“Now the word of the Lord came to me, saying,

11

‘Before I formed you in the womb I knew you, and

before you were born I consecrated you; I appointed

you a prophet to the nations.”); Psalm 139:13-16

(noting that God “formed my inward parts

knitted me together in my mother’s womb,” and

knew “the days that were formed for me, when as yet

there was none of them”); Luke 1:39—44 (recounting

that when Elizabeth, who was pregnant with John

the Baptist, met Mary, the mother of Jesus, “the

baby in [her] womb leaped for joy”).

These and other Scriptural teachings can be

distilled into four core principles undergirding the

Baptist pro-life belief. First, God holds human life in

high regard because “God created man in his own

image.” Genesis 1:27. Being made in the image of

God stamps every human life with intrinsic worth

and dignity. Second, Scripture teaches that a

mother’s womb contains a living human being

created by God. Thus, abortion ends a human life.

For example, in Luke 1:39—44, the inspired author of

the Scripture describes the “baby” (Gr. Bpe@og) in

Mary’s womb using the same word as is elsewhere

used to describe an infant who has been born. The

same scriptural passage affirms the personhood of

the baby in the womb by ascribing to him the

quintessentially human emotion of “joy.” Third, God’s

word consistently condemns the killing of innocent

human beings. See Proverbs 6:16—17 (declaring that

God “hates hands that shed innocent blood.”);

Psalm 106 (describing how the “anger of the Lord

was kindled” when his people “poured out innocent

blood, the blood of their sons and daughters’).

Finally, God calls his followers to “open your mouth

for the mute, for the rights of all who are destitute,”

Proverbs 31:8, and, as there is “opportunity[,] do

12

good to everyone,” Galatians 6:10. No one is more

mute or defenseless than the 1.2 million unborn slain

annually in the United States through abortion.

In keeping with these Scriptural teachings,

Southern Baptists stand firmly in support of the

sanctity of human life, including the unborn. See The

Baptist Faith and Message 2000 Art. XV (“We should

speak on behalf of the unborn and contend for the

sanctity of all human life from conception to natural

death.”); id. at Art. XVIII (Children, from the

moment of conception, are a blessing and heritage

from the Lord.”); SBC Resolution On Adoption and

Orphan Care, 2009 (“Southern Baptists have

articulated an unequivocal commitment to the

sanctity of all human life, born and unborn.”); SBC

Resolution On Thirty Years of Roe v. Wade, 2003

(“The Bible affirms that the unborn baby is a person

bearing the image of God from the moment of

conception.”); SBC Resolution on Sanctity of Human

Life, 1991 (“Southern Baptists have historically

affirmed biblical teaching regarding the sanctity of

human life by adopting numerous pro-life resolutions

at the national, state, and local levels.”); SBC

Resolution On Encouraging Laws Regulating

Abortion, 1989 (“Southern Baptists have historically

upheld the sanctity and worth of all human life, both

born and preborn, as being created in the image of

God.”); SBC Resolution on Abortion, 1984 (noting an

unborn child “is a living individual human being”).5

5 Resolutions available at http://www.sbc.net/resolutionsa/1194/

on-adoption-and-orphan-care, http://www.sbc.net/resolutiona/11

30/on-thirty-years-of-roe-v-wade, http://www.sbc.net/resolutions/

619/resolution-on-sanctity-of-human-life, http://www.sbc.net/res

olutions/23/resolution-on-encouraging-laws-regulating-abortion,

13

In accordance with these beliefs about unborn

human life, Southern Baptists have a firm and well-

known theological opposition to abortion, and the

Southern Baptist Convention has_ repeatedly

expressed its opposition to abortion in the strongest

terms. See SBC Resolution On Adoption and Orphan

Care, 2009 (“The satanic powers and the ravages of

sin have warred against infants and children from

Pharaoh to Molech to Herod and, now, through the

horrors of a divorce culture, an abortion industry,

and the global plagues of disease, starvation, and

warfare.”); SBC Resolution On Planned Parenthood,

2008 (“Scripture speaks to the sanctity of human life

in the womb [] and God’s abhorrence of those who

murder the innocent.”); SBC Resolution on Sanctity

of Human Life, 1991 (“[W]e affirm the biblical

prohibition against the taking of unborn human life

except to save the life of the mother; and we call

on all Southern Baptists to work for the adoption of

pro-life legislation in their respective states which

would expand protection for unborn babies.”); SBC

Resolution On Encouraging Laws Regulating

Abortion, 1989 (“[T]he messengers to the annual

meetings of the Southern Baptist Convention during

the past decade have repeatedly reaffirmed their

opposition to legalized abortion, except in cases

where the mother’s life is immediately threatened

[and] we do reaffirm our opposition to legalized

abortion.”); SBC Resolution on Abortion, 1984

and http://www.sbc.net/resolutions/2 1/resolution-on-abortion

(links last visited January 7, 2016).

14

(characterizing abortion-on-demand as a “national

sin”).6

In addition, Southern Baptists have expressly

opposed the use of abortion-inducing drugs such as

the so-called morning-after pill because such drugs

kill an unborn human person. See SBC Resolution on

RU 486, 1994 (“RU 486, the French abortion pill, is a

direct assault on the sacredness and value of unborn

human life in that this drug kills an unborn child

whose heart has already started to beat.”); SBC

Resolution on Sanctity of Human Life, 1991 (“[W]Je

oppose the testing, approval, distribution, and

marketing in America of new drugs and technologies

which will make the practice of abortion more

convenient and more widespread.”).’

In keeping with these Baptist beliefs and historic

Protestant beliefs,? prominent Southern Baptist

6 Resolutions available at http://www.sbc.net/resolutions/1194/

on-adoption-and-orphan-care, http://www.sbc.net/resolutions/

1191/on-planned-parenthood, http://www.sbc.net/resolutions/

619/resolution-on-sanctity-of-human-life, http://www.sbc.net/res

olutions/23/resolution-on-encouraging-laws-regulating-abortion,

and __http://www.sbc.net/resolutions/21/resolution-on-abortion

(links last visited January 7, 2016).

7 Resolutions available at http://www.sbc.net/resolutions/25/

resolution-on-ru-486-the-french-abortion-pill; http://www.sbe.net

/resolutions/6 19/resolution-on-sanctity-of-human-life (links last

visited January 7, 2016).

8 Indeed, the Reformers denounced abortion as a grave moral

evil. See, e.g., Martin Luther, Luther’s Works, Vol. 4: Lectures on

Genesis Chapters 21-25 at 304 (tr. Jaroslav Pelikan, 1999)

(“How great, therefore, the wickedness of human nature is! How

many girls there are who prevent conception and kill and expel

tender fetuses, although procreation is the work of God!”); John

Calvin, Commentaries on the Last Four Books of Moses, Vol. 3

at 51-52 (tr. Charles Bingham, 1852) (“[T]he foetus, though

15

theologians and ministers have and continue to decry

the grave moral wrong of abortion. See R. Albert

Mohler, Jr., “J Feel Super Great About Having an

Abortion”—The Culture of Death Goes Viral, May 8,

2014; ERLC Letter to Congress on No Taxpayer

Funding for Abortion Act, January 27, 2014; R.

Albert Mohler, Jr., So What if Abortion Ends a Life?

Rare Candor from the Culture of Death, February 1,

2013; R. Albert Mohler, Jr., “Abortion is as American

as Apple Pie’—The Culture of Death Finds a Voice,

January 20, 2012;9 Carl F.H. Henry, Has Democracy

Had Its Day? at 28-29 (1996) (commending those

“who resisted the federal government’s intrusion into

the spe of religious values, notably the public

funding of abortion”); Carl F.H. Henry, Twilight of a

Great Civilization at 34 (1988) (“[W]hen government

engages in programs that violate Christian

conscience, such as funding abortions, bold

protest is proper.”).

These beliefs and obligations guide not only

Southern Baptist ministers and individuals, but also

instruct the policy and practice of all Southern

Baptist ministries and entities. See SBC Resolution

on Abortion, 1987 (“[W]e encourage all agencies and

institutions of the SBC to use their resources and

enclosed in the womb of its mother, is already a human being,

and it is almost a monstrous crime to rob it of the life which it

has not yet begun to enjoy.”).

® Available at http://www.albertmohler.com/2014/05/08/i-feel-super-

great-about-having-an-abortion-the-culture-of-death-goes-viral/;

http://www.erlc.com/documents/pdf/20 140127-ltr-house-ntffaa.pdf;

http://www.albertmohler.com/2013/02/0 1/so-what-if-abortion-ends-

a-life-rare-candor-from-the-culture-of-death/; http://www.albert

mohler.com/2012/01/20/abortion-is-as-american-as-apple-pie-the-

culture-of-death-finds-a-voice/ (links last visited January 7, 2016).

16

program ministries to promote the sanctity of human

life.”), available at http://www.sbc.net/resolutions/22/

resolution-on-abortion (last visited January 7, 2016).

In light of the clear Southern Baptist conviction

on the sanctity of life and the moral wrong of

abortion, it is no surprise that Southern Baptist

entities like Petitioners refuse to provide abortion-

inducing drugs either directly or indirectly by

authorizing, obligating, or incentivizing their health

care providers to do so using Petitioners’ health plan

information and infrastructure.

III. Christian doctrine and Southern Baptist

teaching state it is a sin for a Christian to

enable or aid another in doing what the

Christian believes to be wrong.

As a result of the holistic scope of the Christian

faith and the Southern Baptist theological opposition

to abortion, the Petitioners, as a matter of doctrine

and conscience, cannot distribute abortion-inducing

drugs and devices either directly or indirectly by

authorizing, obligating, or incentivizing their own

insurers or third-party administrators to use

Petitioners’ health plans to provide such drugs and

devices to others. Christian doctrine, like the civil

and criminal law of this nation, teaches that one who

knowingly aids or abets another's wrongdoing has

himself done wrong. See, eg., Matthew 18:6

(“[W]hoever causes one of these little ones who

believe in me to sin, it would be better for him to

have a great millstone fastened around his neck and

to be drowned in the depth of the sea.”); Romans

14:13-14 (“Therefore let us not pass judgment on one

another any longer, but rather decide never to put a

stumbling block or hindrance in the way of a brother”

17

and thus cause them to sin); 1 Corinthians 8:9-13

(warning Christians to take care not to be a

“stumbling block” to others and noting that by

“sinning against your brothers and wounding their

conscience when it is weak, you sin against Christ”);

The Larger Catechism of the Westminster Assembly

245 (1841) (“That what is forbidden or commanded to

ourselves, we are bound, according to our places, to

endeavour that it may be avoided or performed by

others.”).

This principle applies with particular force to

situations in which a Christian’s action or inaction

involves the taking of life. See The Large Catechism

by Martin Luther (1529), reprinted in Triglot

Concordia: The Symbolical Books of the Ev. Lutheran

Church (1921) (“So also, if you see any one innocently

sentenced to death or in like distress, and do not save

him, although you know ways and means to do so,

you have killed him.”); Thomas Vincent, An

Explanation of the Assembly’s Shorter Catechism

171-72 (1806) (“We are forbidden to kill others,

either directly or indirectly, by doing any thing

that tendeth thereunto. We may be guilty of the

murder of others, indirectly, by doing any thing

that tendeth to take away others lives.”).

Congress and State legislatures have long

recognized that one’s sincere religious beliefs may

prevent him from approving, authorizing, or aiding

another in something the believer considers to be

wrong, even if the believer is not himself committing

the underlying wrong. For example, Congress

exempts religious conscientious objectors not only

from combat roles but from participation “in any

form” in war. 50 U.S.C. App. § 456(); Hanna v.

Secretary of the Army, 513 F.3d 4 (1st Cir. 2008)

18

(upholding permanent injunction exempting Coptic

Christian physician from active duty because she

could not perform her chosen profession in the

military context without violating her deeply held

religious beliefs). Also, physicians and hospitals with

a religious objection to abortion are exempt not only

from performing abortion but also from assisting,

making their facilities available, or even making

referrals for abortion. 42 U.S.C. § 300a-7; 42 U.S.C.

§ 238n. Similarly, “eleven states and the federal

government have adopted some type of statute or

regulation to ensure that individuals are not forced

to participate in executions against their will.” Mark

L. Rienzi, The Constitutional Right Not to Kill, 62

Emory L.J. 121, 139 (2012).

The courts, like the legislatures, recognize that

one’s religious beliefs may prevent believers from any

attenuated authorization or complicity in conduct

they consider to be wrong. See, e.g., Hobby Lobby

Stores, Inc. v. Sebelius, 723 F.3d 1114, 1142 (10th

Cir. 2013), affd sub nom. Burwell v. Hobby Lobby

Stores, Inc., 134 S. Ct. 2751 (2014) (“And the

question here is not whether the reasonable observer

would consider the plaintiffs complicit in an immoral

act, but rather how the plaintiffs themselves

measure their degree of complicity.”); Gilardi v. U.S.

Dept. of Health and Human Servcs., 733 F.3d 1208,

1215 (D.C. Cir. 2013), vacated on other grounds, 134

S. Ct. 2902 (2014) (noting that “even attenuated

participation may be construed as a sin”); Thomas v.

Anchorage Human Rights Comm'n, 165 F.3d 692 (9th

Cir. 1999), vacated on other grounds, 220 F.3d 1134

(9th Cir. 2000) (en banc) (recognizing a Christian

landlord’s sincere religious belief that unmarried

cohabitation was sin merited exemption from state

19

and local housing laws); State by Cooper v. French,

460 N.W.2d 2, 7 (Minn. 1990) (same, under

Minnesota Constitution). Indeed, courts have

previously recognized this concept in this very

context. Hobby Lobby, 723 F.3d at 1140 n.15 (“The

assertion that life begins at conception is familiar in

modern religious discourse Moral culpability for

enabling a third party’s supposedly immoral act is

likewise familiar.”).

The statutory and judicial religious exemptions

enumerated above are notable for several reasons.

First, none of them make the applicability of the

exemption dependent on whether the religiously

motivated conduct involves “sacred” or seemingly

“secular” conduct. See Attorney Gen. v. Desilets, 636

N.E.2d 233, 238 (Mass. 1994) (“The fact that the

defendants’ free exercise of religion claim arises in a

commercial context does not mean that their con-

sti‘tional rights are not substantially burdened.”).

Second, they recognize that religious belief not only

prevents believers from engaging directly in sin but

also prevent any participation, authorization, or

enabling of what they consider to be sin. See Rienzi,

62 Emory LJ. at 139 (noting the statutory

exemptions from participating in capital punishment

“protect the individual not only from _ direct

involvement—such as personally administering a

lethal injection or turning on the electric chair—but

also less direct involvement such as preparing the

individual and apparatus used, supervising other

people who will do these things, or even attending

the execution.”). Finally, many of these exemptions

involve situations involving the taking of human life,

recognizing that to compel individuals to participate

in what they believe to be an unjustified taking of life

20

imposes a grievous burden on the exercise of their

beliefs.

Here, like in the foregoing examples, the

Petitioners’ refusal to be complicit in wrongdoing is

in no way undercut by the fact that Southern

Baptists, like other Christians over the past two

millennia, pay taxes that may ultimately be used to

fund objectionable acts. The payment of taxes is

distinguishable in several ways. First, Jesus

expressly commanded his followers to do so—a

command given to hearers who would have found

many of Caesar’s activities to be objectionable—while

simultaneously recognizing that payment of taxes

did not forfeit a believer's primary obligations to

follow God’s commands. See Mark 12:17 (“Jesus said

to them, ‘Render to Caesar the things that are

Caesar's, and to God the things that are God’s.”).

Second, the act of paying a tax does not itself require

one citizen to intentionally, directly, and personally

obligate, authorize, incentivize, or materially assist

another citizen to engage in known objectionable

conduct. In contrast, the HHS mandate forces the

Petitioners to sign and deliver a form with the

purpose of expressly authorizing or incentivizing the

use of Petitioners’ own health plan information and

infrastructure to provide abortion-inducing drugs;

drugs whose sole purpose and use is inherently

morally objectionable and which otherwise would not

be provided. Third, the vast majority of each tax

dollar paid by Petitioners is spent on things that they

do not find inherently morally objectionable, a fact

that comports with the Scriptural recognition that a

proper function of the state is to do good and punish

evil. See Romans 13:3-7. Here, in contrast, the

certain effect of participating in the mandate scheme

21

is to authorize, obligate, or incentivize Petitioners’

insurers or third-party administrators to engage in

specific conduct Petitioners find morally

objectionable, and in a way that requires Petitioners’

ongoing support and assistance (by maintaining and

regularly updating the health plan information and

infrastructure).

In analogous contexts, courts have implicitly

recognized a distinction between complicity in

wrongdoing and the mere payment of taxes. For

example, the Supreme Court has recognized that a

pacifist has a legitimate moral objection to being

forced to work in a factory making war goods. See

Thomas v. Review Bd. of Indiana Employment Sec.

Div., 450 U.S. 707 (1981). The fact that Thomas also

paid taxes that were used to support the war effort

did not scuttle his argument that manufacturing

weapons made him complicit in the war and thus

violated his religious beliefs.

In sum, scriptural teaching and Southern Baptist

doctrine state it is a sin for a Christian to enable or

aid another in doing what the Christian believes to

be wrong. As a matter of doctrine and conscience,

Petitioners cannot comply with the government’s

mandate to delegate to another the repugnant task of

distributing abortion-inducing drugs and devices.

IV. Requiring Christians to choose between

violating the Government’s regulations

or violating their sincerely held religious

beliefs substantially burdens their

exercise of religion.

The Religious Freedom Restoration Act of 1993

(“RFRA”), 42 U.S.C. §§ 2000bb et seg., prohibits the

federal government from substantially burdening “a

22

person’s exercise of religion,” id. at § 2000bb-1(a),

unless applying that burden is the “least restrictive

means of furthering [a] compelling governmental

interest,” id. at § 2000bb-1(b). In enacting RFRA,

Congress sought to restore the compelling interest

test for defenses to claims that a facially neutral law

of general applicability “substantially burdens” the

free exercise of religion—a test that had been

abandoned by the Supreme Court in Employment

Division, Department of Human Resources v. Smith,

494 U.S. 872 (1990). See 42 U.S.C. § 2000bb(b)(1)

(“The purposes of this chapter are: (1) to restore the

compelling interest test as set forth in Sherbert v.

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

406 U.S. 205 (1972) and to guarantee its application

in all cases where free exercise of religion is

substantially burdened.”) (emphasis added). Thus,

RFRA creates a statutory right to exemption from

laws that substantially burden sincere religious

beliefs, even if the law is neutral and generally

applicable, unless the government can prove that

“strict serwtiny” is met. O’Bryan v. Bureau of Prisons,

349 F.3d 399, 401 (7th Cir. 2003).

The existence of a substantial burden is most

apparent when the government forces a person or

group to “perform acts undeniably at odds with

fundamental tenets of their religious beliefs.”

Wisconsin v. Yoder, 406 U.S. 205, 218 (1972) (finding

that compulsory formal secondary education was an

undue burden on the free exercise of Amish parents’

religion). Further, a substantial burden can arise

indirectly if the receipt of benefits is conditioned on

the performance of conduct proscribed by a religious

faith, or benefits are denied because of conduct

required by a religious faith. Thomas, 450 U.S. at

23

717-18 (determining that a denial of unemployment

benefits to an employee who had a religious objection

to war was a burden on his religion).

As a threshold matter, the religious objection or

conduct at issue must be both sincere and religious.

Hobby Lobby, 723 F.3d at 1140. The religious belief

is not, however, required to be central to the person’s

faith, 42 U.S.C. § 2000cc-5(7)(A), nor is it required to

be a “correct” interpretation. See United States v.

Lee, 455 U.S. 252, 257 (1982) (“Courts are not

arbiters of scriptural interpretation.”); id. at 261 n.12

(courts cannot “speculate whether” the peculiarities

of a legal scheme “ease or mitigate the perceived sin

of participation”) (quoting Thomas, 450 U.S. at 716)).

Instead, a party must only show an “honest

conviction” that the pressure from the government

substantially conflicts with his religion. Thomas, 450

U.S. at 716. Rather than questioning the validity of

the belief, the court undertaking the substantial

burden analysis under RFRA should focus on the

intensity of the coercion applied by the government,

requiring that the restrictive law protect “interests of

the highest order.” Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).

Christian doctrine requires Christian individuals

and entities to consistently conduct themselves in

accordance with their beliefs. See Part I, supra.

Furthermore, Christians should not be required to

abandon the task to which they have been called by

God solely because of governmental intrusion and

penalties. See The Baptist Faith & Message 2000,

Art. XVII (“Civil government being ordained by God,

it is the duty of Christians to render loyal obedience

thereto in all things not contrary to the revealed will

24

of God. The state has no right to impose penalties

for religious opinions of any kind.”), available at

http://www.sbc.net/bfm2000/bfm2000.asp (last visited

January 7, 2016). Forcing Southern Baptist entities

like Petitioners to choose between paying crippling

fines by conducting their ministries in accord with

their religious tenets or sacrificing those core values

in order to preserve the ministry is exactly the type

of coercion the substantial burden test encompasses.

The Supreme Court has previously recognized

that sincerely-held religious beliefs subject to

government pressure at the workplace can result in a

substantial burden on religion. Thomas, 450 U.S. at

716 (finding a substantial burden where an employee

with a religious belief against producing war

materials was denied unemployment benefits after

quitting when transferred to a factory producing

tank turrets); Sherbert, 374 U.S. at 404 (holding the

denial of unemployment benefits placed a substantial

burden on a Seventh-Day Adventist who quit her job

after being forced to work on Saturday).

Significantly, the government has recognized this

substantial burden by establishing exemptions for

other religious groups cornered into making this

choice. See 45 C.F.R. § 147.131 (2013) (allowing

HRSA to exempt religious employers from

requirement to cover contraceptive services under

group health plan); see also 78 Fed. Reg. 39870 (July

2, 2013) (“[G]jroup health plans established or

maintained by certain religious employers (and

group health insurance coverage provided in con-

nection with such plans) are exempt from the

otherwise applicable requirement to cover certain

contraceptive services”). The discrimination involved

in the Government’s exemption of some groups only

25

compounds the burdensome nature of the fines

imposed on non-exempt groups that share the same

religious views. Sherbert, 374 U.S. at 406 (noting a

prohibition against requiring employees to work on

Sunday compounds the unconstitutionality of forcing

a Sabbatarian to work on Saturday).

In sum, the government’s mandate substantially

burdens the religious exercise of Petitioners’

Christian ministries by imposing draconian fines for

acts specifically mandated by Christian doctrine.

26

CONCLUSION

For the foregoing reasons, amici respectfully

request this Court reverse the decisions of the courts

below.

Respectfully submitted,

Miles E. Coleman

Counsel of Record

Jay T. Thompson

NELSON MULLINS RILEY &

SCARBOROUGH, LLP

1320 Main Street

Columbia, SC 29201

miles.coleman@nelsonmullins.com

(803) 799-2000

Derek Gaubatz

INTERNATIONAL MISSION BOARD

3806 Monument Avenue

Richmond, VA 23230

Counsel for Amici Curiae

January 11, 2016