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

Supreme Cour. US_

FILED

JAN 11 2016

Nos. 14-1418, 14-1453, 14-1506, OFECE OF THe cen

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

IN THE

Supreme Court of the Anited States

DAVID A. ZUBIK, ET AL, Petitioners,

Vv.

SYLVIA BURWELL, ET AL., Respondents.

LITTLE SISTERS OF THE POOR HOME FOR THE AGED,

DENVER, COLORADO, ET AL, Petitioners,

Vv.

SYLVIA BURWELL, ET AL., Respondents.

On Writ of Certiorari to the United States Courts of

Appeals for the Third, Fifth, Tenth & D.C. Circuits

Brief Amicus Curiae of U.S. Justice

Foundation, Eberle Communications Group,

Public Advocate of the U.S., Citizens United,

Citizens United Foundation, Conservative

Legal Defense and Education Fund, Institute

on the Constitution, Policy Analysis Center,

Southwest Prophecy Ministries, Daniel

Chapter One, and Virginia Delegate Bob

Marshall in Support of Petitioners

MICHAEL CONNELLY HERBERT W. TITUS*

U.S. Justice Foundation WILLIAM J. OLSON

932 D Street, Ste. 2 JEREMIAH L. MORGAN

Ramona, CA 92065 JOHN S. MILES

Attorney for Amicus Curiae WILLIAM J. OLSON, P.C.

U.S. Justice Foundation 370 Maple Ave. W., Ste. 4

Vienna, VA 22180-5615

(703) 356-5070

*Counsel of Record wjo@mindspring.com

January 11, 2016 Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ili

INTEREST OF THE AMICI CURIAE 1

SUMMARY OF ARGUMENT 2

ARGUMENT

I. CONGRESS NEVER MANDATED THAT

CONTRACEPTIVES, INCLUDING

ABORTIFACIENTS, BE PROVIDED TO WOMEN 5

Il. IOM Is TOTALLY SECULAR, WHILE LITTLE

SISTERS IS DEVOUTLY CATHOLIC i]

III. The GOVERNMENT WOULD REQUIRE LITTLE

SISTERS TO ADJUST ITS CATHOLIC FAITH TO

ACCOMMODATE IOM’S RADICAL FEMINIST

VIEWS IN VIOLATION OF RFRA 12

IV SUBJUGATING LITTLE SISTERS TO IOM’sS

SECULAR VIEWS VIOLATES THE FIRST

AMENDMENT 18

A. Religion: A Duty Owed Exclusively to

God 18

B. Free Exercise of Religion: Matters of

Opinion 20

C. Free Exercise Restricted, and Now

Revived 23

il

D. The Contraceptive Services Mandate

Violates Freedom of Opinion

V THE COURT SHOULD ORDER RE-BRIEFING ON

WHETHER THE CONTRACEPTION/

ABORTIFACIENT MANDATE OF THE

AFFORDABLE CARE ACT VIOLATES THE FREE

EXERCISE CLAUSE

CONCLUSION

APPENDIX

25

30

39

lll

TIE

Page

HOLY BIBLE

Proverbs 6:27-29 17

Matthew 22:20-21 25

Hebrews 13:4 17

I Corinthians 6:18 17

U.S. CONSTITUTION

First Amendment. 4, passim

STATUTES

Religious Freedom Restoration Act, 107 Stat. 1488

(Nov. 16, 1993) 5, passim

42 U.S.C. § 2000bb-1(a) and (b) 36

CASES

Abington School District v. Schempp, 374 U.S.

203 (1963) 35

Buck v. Bell, 274 U.S. 200 (1927) 11

Burwell v. Hobby Lobby Stores, Inc., 573

U.S. __, 184 S.Ct. 2751 (2014) 2, passim

District of Columbia v. Heller, 554 U.S.

570 (2008) 37

Edwards v. Aguillard, 482 U.S. 578 (1987) 35,

Employment Division v. Smith, 494 U.S.

872 (1990) 23, 24, 29

Engel v. Vitale, 370 U.S. 421 (1962) 35

Hosanna-Tabor Evangelical Lutheran

Church and School v. EEOC, 565 U.S.

, 1382 S. Ct. 694 (2012) 24, 25, 37

Hurley v. Irish-American Lesbian and Bisexual

Group of Boston, 515 U.S. 557 (1995) 26

iv

McCollum v. Board of Education, 333 U.S.

201 (1948) 35

Obergefell v. Hodges, 576 U.S.__, 135 S.Ct.

2584 (2015) 38

Reynolds v. United States, 98 U.S. 145 (1879) 19

Schechter Poultry Corp. v. United States, 295

U.S. 495 (1935) 7,8

Stone v. Graham, 449 U.S. 39 (1980) 35

Town of Greece v. Galloway, 572 U.S. __,

134 S.Ct. 1811 (2014) 35

United States v. Lee, 455 U.S. 252 (1982) 36

MISCELLANEOUS

E. Brodwin and K. Taylor, “The government

just proposed a sea change to American diets,”

BusinessInsider.com, Jan. 7, 2016 10

Constitutio on igion

(J. Patrick & G. Long, eds., Greenwood

Press: 1999) 21

The Founders’ Constitution (P Kurland & R.

Lerner, eds., U. of Chi.: 1987) 18, passim

Hearings before the Subcommittee on Civil and

Constitutional Rights of the House Committee

on the Judiciary, on H.R. 2797, Religious

Freedom Restoration Act of 1991 (May 13-24,

1992) 35

E.D. Hirsch, Jr., Validity in Interpretation

(YALE UNIV. PRESS 1967) 37

Robert G. Marshall & <narine A. Donovan in

Bl ial Polic

of Planned Parenthood Geuities Press 1991) 6

H. Titus, “The Free Exercise Clause: Past,

Present and Future,” 6 REGENT L.

REV. 7 (1995) 23, 24, 36

E F I TAE'

U.S. Justice Foundation, Citizens United

Foundation, Conservative Legal Defense and

Education Fund, and Policy Analysis Center are

nonprofit educational organizations, exempt from

federal income tax under section 501(c)(3) of the

Internal Revenue Code (“IRC”). Citizens United and

Public Advocate of the United States, Inc. are

nonprofit social welfare organizations, exempt from

federal income tax under IRC section 501(c)(4).

Institute on the Constitution is an educational

organization. Southwest Prophecy Ministries and

Daniel Chapter One are religious and educational

organizations.

These legal, policy, and religious organizations

were established, inter alia, for educational purposes

related to participation in the public policy process,

which purposes include programs to conduct research

and to inform and educate the public on the proper

construction of state and federal constitutions and

statutes related to the rights of citizens, and questions

related to human and civil rights secured by law.

Eberle Communications Group, Inc. is a for-profit

corporation, headquartered in McLean, Virginia.

Virginia Delegate Bob Marshall (R-13) is a senior

member of the Virginia House of Delegates and was

the Chief Patron of the Virginia Health Care Freedom

' It is hereby certified that counsel for the parties have consented

to the filing of this brief; that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

Act denying enforcement of certain government

mandates to obtain or maintain health insurance

coverage.”

Some of these amici filed an amicus brief in this

Court in the consolidated cases of Burwell v. Hobby

ena SED and Conestoga Wood Specialities v.

Burwell, 573 U.S. __, 134 S.Ct. 2751 (2014).°

SUMMARY OF ARGUMENT

As a critical threshold matter, it is important that

this Court not operate on the assumption that

Congress wrote into the Affordable Care Act a

requirement that contraceptive/abortifacients be

provided to women, as some may have believed when

this Court decided the Hobby Lobby case in 2014.

Indeed, such regulations as now exist were not even

written by the Department of Health and Human

Services (“HHS”), but rather by a private, secular

organization — the Institute of Medicine (“IOM”).

Then, ignoring an important dissenting voice on IOM,

these recommendations were rubber-stamped and

issued by HHS.

The IOM Committee which wrote the report in

question was narrowly drawn from one branch of

medicine — allopathic medicine. It was devoid of any

2

Virginia's a Information Service, 2010 Session,

http://is. vir v/cgi-bi ?101+sum+HB10

* http://www.law stitutional/Conestoga

%20Woo0d%20Amicus%20Brief. pdf.

3

interest in or expertise concerning moral and other

issues. The IOM Committee is best viewed as a

thoroughly secular entity with a materialistic view of

man’s body as mere matter in motion. In no way could

it be said to reflect, or even have any expertise in, the

soul or spirit of man, to say nothing of matters of

theology, including, for example, Roman Catholic

doctrine and beliefs guiding the lives of the Little

Sisters.

The position of the government in this case is that

it should have the raw power to compel the Little

Sisters to yield its religious principles in service to the

pro-sexual license, pro-contraception, pro-abortion,

agenda of the Obama Administration. The disdain

shown for the Biblically based and Catholic doctrine

inspired Petitioners is demonstrated by the

willingness of HHS to grant a variety of exemptions to

other employers, including those who are political

allies of the Obama Administration, while refusing to

lift the government’s boot off the neck of the Little

Sisters.

Almost as if the program were designed to

demonstrate the authority of the federal government

to coerce Christian organizations to abandon their

faith, HHS regulations mandate that “preventative

service for women [include] the full-range of Food and

Drug Administration-approved contraceptive methods,

sterilization procedures, and patient education and

counseling for women with reproductive capacity.”

However, perhaps the apex among a host of acts of

governmental arrogance in this case was displayed not

4

by HHS, but when the U.S. Court of Appeals for the

Tenth Circuit acted as if it had ecclesiastical powers of

absolution, having decreed that by just signing a

paper, Little Sisters would not be “morally complicit in

providing contraceptive coverage.” See Little Sisters

Br. at 35. One would expect that on the issue of who

the God of Heaven and Earth will hold “morally

complicit,” it would be the Little Sisters which would

have the greater expertise than a federal judge.

The Bible clearly establishes some matters to be

within the jurisdiction of the government, and other

matters to be within the exclusive jurisdiction of the

church. However, although it would be refreshing, it

would not be necessary for this Court to rely on Holy

Scripture as authority for these principles, as these are

the principles on which the First Amendment was

based. From Virginia Declaration of Rights (June

1776), to James Madison’s Memorial and

Remonstrance Against Religious Assessments (June

1785), to Thomas Jefferson’s Act for Establishing

Religious Freedom (October 1785), to the ratification

of the First Amendment together with its Free

Exercise Clause (December 1791), there is an

unbroken premise that the civil government absolutely

has no jurisdiction over the duties that the people owe

exclusively to their Creator, no matter how compelling

the government’s claimed interest may be. Indeed, the

Founders did mean it when they mandated “Congress

shall make no law ... prohibiting the free exercise [of

religion.”

Although one of the petitioners sought review of

the First Amendment issue in this case, the Court

5

limited the grant of certiorari to the issues raised by

Religious Freedom Restoration Act. However, as

foretold by some when that bill was being considered,

and as experience over the last 23 years has

demonstrated, RFRA can be read to allow government

actions that the First Amendment prohibits.

Therefore, to reach a proper decision in this case, these

amici urge the Court to revise the scope of its grant of

certiorari to include the First Amendment issue, and

to order re-briefing on this case. Only in this way will

the Court’s decision resolve all of the issues litigated

below, and afford the full protection of the First

Amendment to Little Sisters, and the other

Petitioners.

ARGUMENT

I. CONGRESS NEVER MANDATED THAT

CONTRACEPTIVES, INCLUDING

ABORTIFACIENTS, BE PROVIDED TO

WOMEN.

In her dissenting opinion in Burwell v. Hobby

Lobby, Inc., 134 S.Ct. 2751, 2787-88 (2014), Justice

Ginsburg asserted that Congress — acting on the

understanding that “[t]he ability of women to

participate equally in the ... life of the Nation has been

facilitated by their ability to control their reproductive

lives” — had directed the Department of Health and

Human Services to “promulgate[] regulations

requiring group health plans to cover all forms of

6

contraception* approved by the Food and Drug

Administration (FDA).” In truth, Congress did no such

thing. As Little Sisters of the Poor Home for the Aged,

Denver, Colorado (“Little Sisters”) explained in its

Petition for Certiorari in this case:

Congress itself did not define “preventive

care” but instead allowed HHS todo so. HHS

outsourced that “important and sensitive

decision” to the Institute of Medicine [“IOM”],

a private organization.... The Institute’s

* The meaning of the term “contraception” has undergone radical

transformation in recent years. Traditionally, it meant “birth

control” which prevented conception, meaning fertilization of an

ovum. However, contraception has come to be defined more

broadly to include substances or devices used not to prevent

fertilization of an egg, but to prevent the implantation of the

embryo into the lining of the womb by inducing a miscarriage or

an abortion. For those who live according to Catholic doctrine,

including the Little Sisters, such “contraceptives” are

abortifacients. See Brief for Little Sisters, et al. at 27. Widely

respected Christian author Randy Alcorn’s article, “The IUD,

Norplant, Depo-Provera, NuvaRing, RU-486 and the Mini-Pill”

explaine how these Roate operate.

also the Alcorn interview mg “Is there a connestion between

birth control pills and abortion?” http://vimeo.com/16321721. The

remarkable story of the campaign undertaken by supporters of

abortion to manipulate the medical terminology associated with

conception is detailed by Robert G. Marshall & Chartes A.

Donovan in Blessed :

Parenthood (Ignatius — 1991). One pro-abortion edition

explained the purpose of the strategy as follows: “if a medical

consensus develops [that] life, begins at implantation [rather than

fertilization], eventually [theologians and jurists] will listen.” Jd.

at 293.

7

definition [became law by] HHS adopt[ion].

[Little Sisters Petition for a Writ of Certiorari

(“Little Sisters Pet.”) at 5 (emphasis added).]

Indeed, in its opening brief, the Little Sisters

reiterated that “Congress did not specify what

‘preventive care and screenings’ a plan must cover,”

having delegated that task to the “Health Resources

and Services Administration ((HRSA’), a sub-agency

within ... HHS.” Brief for Little Sisters, et al (“Little

Sisters Br.”) at 8. And, HHS, “in turn, asked the

[IOM] ... to develop recommendations to help

implement these requirements.” Jd. (emphasis added).

Lastly, “HHS adopted the IOM’s recommendation

entirely.” Jd. (emphasis added).

Therefore, it was not Congress — and not even

HHS or HRSA — but a nongovernment entity that

specified the “minimum essential coverage ... for

‘preventive care and screenings’ for women without

‘any cost sharing requirements.” Jd. at 7-8. In effect,

Congress wrote a check drawn on its bank of

legislative powers — payable to the executive

department — which was then endorsed over to IOM,

transferring its legislative power to define “preventive

care” to a nongovernment policy advocacy

organization. In so doing, the Obama Administration

wholly disregarded the unanimous opinion of the

Supreme Court that “Congress is not permitted to

abdicate or to transfer to others the essential

legislative functions with which it is thus vested.” See

Schechter Poultry Corp. v. United States, 295 U.S.

495, 529 (1935). And when that delegation positions

private interests to set the rules for their own benefit

8

and for the benefit of affiliated entities and persons,

the Court condemned such delegation to be “unknown

to our law and ... utterly inconsistent with the

constitutional prerogatives and duties of Congress.”

Id. at 537

Nonchalantly, dissenting Justice Ginsburg

heralded this transfer of power to IOM. See Hobby

Lobby at 2788-89. Indeed, she lauded IOM for having

“convened a group of independent experts [who]

determined that preventive coverage should include

the ‘full range’ of FDA-approved contraceptive

methods.” Jd. at 2788-89 (emphasis added). According

to Justice Ginsburg, “the IOM[] report [did no more

than] express[] concerns similar to those voiced by

congressional proponents of the Women’s Health

Amendment,” but as Justice Alito’s majority opinion

observed, “Congress ... did not specify what types of

preventive care must be covered.” Id. at 2762.

Instead, the Hobby Lobby majority asserted that

Congress had delegated “that important and

sensitive decision [to] HRSA which, in turn, consulted

[I1OM], a nonprofit group of volunteer advisors in

determining which preventive services to require.” Jd.

at 2762 (emphasis added). Although the Hobby Lobby

majority characterized IOM’s determinations as

“recommendations” (id.), and Justice Ginsburg called

them “suggestions” (id. at 2789), the fact remains that,

as the Little Sisters brief asserts, the IOM

recommendations were adopted in their entirety.

Little Sister's Br. at 8. And, as the Little Sister’s

Petition initially put it, the legislative and executive

departments “outsourced thle] ‘important and

9

sensitive decision’ to the [IOM], a _ private

organization.” Little Sisters Pet. at 5.

At issue in this case, then, is whether Little Sisters

should be legally obliged to obey a federal mandate

that it facilitate a preventive care program for its

female employees in conformity with the views of a

private, nongovernment entity. The absurdity of such

a mandate is fully revealed by contrasting the

composition and purpose of IOM with that of the Little

Sisters, and then assessing the impact that such forced

complicity would have upon the Little Sisters’ exercise

of religion.

II. IOMIS TOTALLY SECULAR, WHILE LITTLE

SISTERS IS DEVOUTLY CATHOLIC.

IOM, now the National Academy of Medicine,

presents itself as “an independent organization of

eminent professionals from diverse fields including

health and medicine; the natural, social, and

behavioral sciences; and beyond.” A self-described

elite organization, prior to changing its name, IOM —

then the health arm of the National Academy of

Sciences — asserted that it was “renowned for its

research program,’and for its prestigious roster of

members from “not only the health care professions

but also the natural, social, and behavioral sciences, as

well as law, administration, engineering, and the

humanities.” Operating through committees

purportedly carefully composed to ensure the requisite

* http://

10

expertise and to avoid conflicts of interest, the [OM

previously claimed that it “applie[d] the National

Academies ... rigorous research process, aimed at

providing objective and straightforward answers to

difficult questions of national importance.”®

In 2011, the IOM Committee on Preventative

Services for Women (“IOM Comm.”) was composed of

16 health care academics drawn exclusively from the

conventional pharmaceutical-centered allopathic

school of medicine. See [OM Comm. Report, Appendix

C at 223-30. Excluded from its membership were

practitioners of alternative schools of medicine, such

as chiropractic, homeopathy, naturopathy,

acupuncture, American Indian, holistic therapies,

midwifery, Chinese or Eastern medicine, herbal

medicine, and others. Additionally, although the IOM

Committee acknowledged that there were “ethical,

legal and social issues” relevant to coverage decisions

(id. at 7), it did not include any experts with

experience in those areas. The IOM Committee

limited itself to so-called “evidence-based” studies’ to

. ttp://i i .org/ -IOM/St

Process.aspx; sce also hitp://nationslacademies orv/studvorocess/

index.html.

* Reliance on evidence-based studies led the FDA to advise

Americans for decades that fat was bad and sugar was good.

However, just days ago, the U.S. Department of Agriculture and

the Department of Health and Human Services, relying on FDA

research, no doubt including evidence-based studies, have now

announced that fat is good and sugar is bad. E. Brodwin and K.

Taylor, “The government just proposed a sea change to American

diets,” Business Insider.com, Jan. 7. 2016.

11

determine the services necessary for the health and

well-being of women, notwithstanding their

acknowledgment that “[h]ealth outcomes occur because

of multiple factors including biology, behavior, and the

social, cultural, and environmental contexts in which

women live.” Id. at 18.°

Conspicuously absent from IOM’s work was any

consideration or understanding of what constitutes the

“health and well-being” of women from a perspective of

religious faith — Christian, Jewish, Muslim, or

otherwise. This omission was not based upon any

finding that such faith or any lack thereof was

irrelevant to women’s health and well-being, but

apparently because the spiritual dimension of life is

not “evidence-based.” As a direct result of this

exclusion, the IOM omitted entirely any moral,

religious, or spiritual considerations in formulating its

contraceptive mandate. Instead, the committee was

exclusively preoccupied with an atheistic, materialistic

view of mankind — as if men and women were mere

matter in motion — giving no thought whatsoever

regarding the effect that the contraceptive services it

was promoting, including the effects of abortifacients

which kill babies in the womb, would have on the

nd-big-soda-

®* The limitations of so-called evidence-based “science” should have

been put to rest once and for all when the illegitimacy of the

“science” of eugenics was finally recognized. Sadly, that

recognition came long after this Court embraced that “science” in

Buck v. Bell, 274 U.S. 200 (1927) — a case which has never been

reversed.

12

human soul and spirit of the woman, to say nothing of

the baby. See IOM Comm. Report at 102-10.

In contrast, the Little Sisters sincerely and

steadfastly “oppose, based on Catholic doctrine,

sterilization, contraception, and abortion, and they

believe that it is religiously wrong for them to

facilitate the provision of contraceptive procedures and

devices.” Little Sisters Br. at 29. Dedicated to the

“build[ing of] a Culture of Life,” the Little Sisters are

dedicated to “serving the sick and elderly poor.” Jd.

Under a vow of “obedience to God and of hospitality ‘to

care for the aged as if they were Christ himself,’ [they]

treat each ‘individual with the dignity they are due as

a person loved and created by God.” See Little Sisters

Pet. at 10. Such noble and honorable principles defy

evaluation by secular scientists.

Ill. THE GOVERNMENT WOULD REQUIRE

LITTLE SISTERS TO ADJUST ITS

CATHOLIC FAITH TO ACCOMMODATE

IOM’S RADICAL FEMINIST VIEWS IN

VIOLATION OF RFRA.

The government would have Little Sisters adjust

its stated religious doctrine and ministry in order to

accommodate IOM’s secular goals which, as it turns

out, are not, in the government’s eyes, to ensure that

Little Sisters’ female employees would be able to

obtain preventive care insurance. Rather, the

government seeks to forward IOM’s overarching

objective of promoting and facilitating a secularized

sexual lifestyle for women without the need to incur

any out-of-pocket costs to prevent or terminate an

13

unwanted pregnancy or sexually transmitted disease.

After all, as the government has conceded, even if the

Little Sisters complied with the HHS mandate to

facilitate Obamacare-approved preventive care for its

employees, this would in no way mean that Little

Sisters’ female employees could, thereby, obtain

through Little Sisters’ health care program such

preventive care insurance. Little Sisters Br. at 30, 68-

70. Not only would compliance with the HHS mandate

fail to achieve that meager health insurance objective,

but also a variety of exemptions already granted to,

and enjoyed by, other employers, including churches

and integrated ministries, means that the preventive

care mandate does not aid tens of millions of

employees of such exempt entities. See id. at 61-68.

Little Sisters asks why HHS would not do the “same

for petitioners.” Id. at 71. As the Little Sisters brief

contends:

That the government’s “proffered objectives

are not pursued with respect to analogous non-

religious conduct” ... not only “raises serious

doubts about whether the government [was] in

fact pursuing the interest(s] it invokes” when

it refused to grant petitioners an exemption, ...

but also defeats any argument that the

interests it asserts are compelling. [Little

Sisters Br. at 71.]

Although one could speculate that the exemptions

were granted entirely for “political reasons” to

minimize opposition and reward supporters, the more

plausible explanation is that the HHS-mandated

preventive care package is actually a means calculated

14

to reach an entirely different objective. To begin to

answer this question, one must return to the author of

the “preventive care” mandate, the committee of 16

recruited by IOM, to define what Congress had left

undefined — “preventive care and screenings” for

women.

Composed entirely of health care professionals, the

IOM Committee issued its report with only one

dissenting opinion.” Purporting to apply “evidence-

based guidelines” and “evidence reviews,” the IOM

Committee found that women’s “well-being” would best

be served by preventive measures that effectively

reduced the “targeted ... condition” of “unintended

pregnancy’:

The evidence provided to support a

recommendation related to unintended

pregnancy is based on systematic evidence

reviews and other peer-reviewed studies,

which indicate that contraception and

contraceptive counseling are effective at

reducing unintended pregnancies. [See id. at

10 (Table S-1) (emphasis added).]}

As noted above, on these grounds, the IOM

Committee recommended, and HHS adopted, the

contraceptive services mandate that “preventive

service for women [include] the full range of Food and

Drug Administration-approved contraceptive

methods, sterilization procedures, and patient

* See IOM Comm. Report, Appendix D (“App. D”) at 231-35.

15

education and counseling for women with

reproductive capacity.” Jd. (emphasis added).

While the [OM Committee’s findings and

conclusions purport to be “evidence-based,” the studies

relied upon in its report do not even come close to

demonstrating that making contraceptives more

readily available to more women would result in fewer

unintended pregnancies or promote healthy birth

spacing. See IOM Comm. Report at 102-10.

Dissenting IOM Committee member, Professor

Anthony Lo Sasso,”’ has attributed this gap primarily

to “the lack of time [which] prevented a serious and

systematic review of evidence for preventive services,”

and to the dogged “zeal” exhibited by the committee “to

recommend something despite the time constraints

and a far from perfect methodology.” IOM Comm.

Report, App. D at 232. Thus, Professor Lo Sasso

concluded that the entire Report issued by the

Committee was “fatal[ly] flaw[ed]” (id. at 233) because:

the committee process for evaluation of the

evidence lacked transparency and was

largely subject to the preferences of the

committee’s composition. Troublingly, the

process tended to result in a mix of objective

and subjective determinations filtered

through a lens of advocacy. [ld. at 232

(emphasis added).]}

© Professor Lo Sasso is Senior Research Scientist, Division of

Health Policy and Administration, University of Illinois at

Chicago School of Public Health.

16

Indeed, the IOM Committee Report promotes a

one-dimensional view of the educational and

counseling components of family planning services,

and without any moral constraint on sexual activity,

focuses exclusively on maximizing the “availability of

contraceptive options.” Jd. at 107. Underlying this

goal is the unproved assumption that the contraceptive

mandate is necessary not only for women’s health, but

also for her “well-being.” See id. at 1, 2, 3, 4, 6, 8, 13,

16, 17, 20, 21, 22, and 23. Remarkably, the IOM

Committee made no effort to distinguish between true

contraceptives that only prevent conception and those

so-called contraceptives that operate by preventing the

implantation of an embryo leading to death. See id. at

109-10. Instead, completely absorbed in its goal to

reduce “unwanted or mistimed” pregnancies, the [OM

Committee recommended any FDA-approved means,

even abortion-inducing drugs, to facilitate the lifestyle

of “sexually active” women by reducing the risk not

just of pregnancy, but also of full-term pregnancies, to

zero. See id. at 102-04.

Stripped of its “evidence-based” facade, the IOM

Committee Report encourages amoral recreational sex

without reproductive consequences to be the optimal

“quality of life”’' and “life-course orient{ation]”” for all

American women. This life view is diametrically and

transparently opposed to the Catholic Culture of Life

which the Little Sisters are dedicated to build, and

upon which they stand in their opposition not only to

'" Td. at 6.

Id. at 12.

17

contraception, abortion, and sterilization, but to any

action by them that would “facilitate the provision of

contraceptive procedures and devices.” Little Sisters

Br. at 29.

Rather than accommodating the Little Sisters’

commitment to Biblical morality,“ the Obama

Administration has chosen to adopt the IOM

Committee’s commitment to secular amorality. The

Administration coerces the Little Sisters to do the

necessary paperwork to enable others to secure the

requisite preventive care coverage, as if by signing off,

the Little Sisters would, like Pontius Pilate, have

washed their hands of the entire affair. See Little

Sisters Br. at 50. Indeed, the United States Court of

Appeals for the Tenth Circuit acted as if it had

ecclesiastical powers of absolution, having decreed that

by just signing a paper, Little Sisters would not be

“morally complicit in providing contraceptive

coverage.” See Little Sisters Br. at 35. As Little

Sisters point out in its brief, it is completely outside

the jurisdiction of civil courts to resolve theological

questions. Id. at 48-49.

Not only is the interest of the government in

theological matters not compelling, but also it is

illegitimate. Indeed, not only has Congress by its

delegation of power to HHS, HRSA, and IOM

“burdened” the Little Sisters’ “free exercise of religion,”

but also it has done so by illegitimate means and for

'S See, e.g., Proverbs 6:27-29; Hebrews 13:4; and I Corinthians

6:18.

18

an illegitimate purpose, all in violation of its own

Religious Freedom Restoration Act.

IV. SUBJUGATING LITTLE SISTERS TO IOM’S

SECULAR VIEWS VIOLATES THE FIRST

AMENDMENT.

A. Religion: A Duty Owed Exclusively to God

The action taken by the Tenth Circuit to overrule

the Little Sisters’ collective religious conscience grossly

violates the First Amendment Establishment and Free

Exercise guarantees. Those guarantees, as ably stated

by James Madison in his famous Memorial and

Remonstrance Against Religious Assessments, secure

those duties owed exclusively to the Creator, and are

enforceable only by “reason and conviction,” not by

“force or violence”

Because we hold it for a fundamental and

undeniable truth, “that Religion or the duty

which we owe to our Creator and the manner

of discharging it, can be directed only by

reason and conviction, not by force or

violence.” [citation omitted]. The Religion

then of every man must be left to the

conviction and conscience of every man; and

it is the right of every man to exercise it as

these may dictate. This right is in its nature

an unalienable right. It is unalienable,

because the opinions of men, depending only

on the evidence contemplated by their own

minds cannot follow the dictates of other

men. [J. Madison, “Memorial and

19

Remonstrance” to the Honorable the General

Assembly of the Commonwealth of Virginia

(June 20, 1785), reprinted in 5 The Founders’

Constitution, p. 82 (item # 43) (P. Kurland &

R. Lerner, eds., U. of Chi.: 1987) (emphasis

added).}

Four months later, the Virginia General Assembly

enacted into law Thomas Jefferson’s “Act for

Establishing Religious Freedom,” the preamble of

which affirmed this same jurisdictional principle."

The Act’s preamble read:

Whereas Almighty God hath created the

mind free; that all attempts to influence it by

temporal punishments or burthens, or by civil

incapacitations, tend only to beget habits of

hypocrisy and meanness, and are a departure

from the plan of the Holy author of our

religion, who being Lord both of body and

mind, yet chose not to propagate it by

coercions on either, as was in his Almighty

power to do; that the impious presumption of

legislators and rulers, civil as well as

ecclesiastical, who being themselves but

fallible and uninspired men, have assumed

dominion over the faith of others, setting up

their own opinions and modes of thinking as

the only true and infallible, and as such

endeavouring to impose them on others,

hath established and maintained false

“* See Reynolds v. United States, 98 U.S. 145, 163 (1879).

20

religions over the greatest part of the world,

and through all time.... [Act for Establishing

Religious Freedom (Oct. 31, 1785), reprinted in

5 The Founders’ Constitution at 84 (item # 44)

(emphasis added).]

B. Free Exercise of Religion: Matters of

Opinion.

Thus, the 1776 Virginia Declaration of Rights not

only defined “religion,” but also secured its “free

exercise,” that is, its exercise free from any and all

claims of civil jurisdiction. And the choice could not

have been more deliberate. As originally drafted by

George Mason, Section 16 of that Virginia Declaration

read, as follows:

That as Religion, or the Duty which we owe to

our divine and omnipotent Creator, and the

Manner of discharging it, can be governed only

by Reason and Conviction, not by Force or

Violence; and therefore that all Men should

enjoy the fullest Toleration in the Exercise

of Religion, according to the Dictates of

Conscience, unpunished and

unrestrained by the Magistrate, unless,

under colour of Religion, any Man

disturb the Peace, the Happiness, or

Safety of Society, or of Individuals.... [George

Mason & Historic Humans Rights Documents,

21

First Draft, May 20-26, 1776) (emphasis

added)."*]

At the state constitutional convention, James Madison

objected to the provision “that all men should enjoy

the fullest toleration in the exercise of religion”:

Madison wanted to move beyond the tradition

of religious toleration introduced by John

Locke and the English Toleration Act of

1689.... So the twenty-five-year-old delegate

from Orange County to Virginia’s

constitutional convention put forward these

words: “All men are equally entitled to the free

exercise of religion.” [Constitutional Debates

on Freedom of Religion at 31.]

“Madison’s proposal that a right to ‘free exercise of

religion’ should replace the phrase on religious

toleration was approved.” Jd. Thus, Section 16 as

adopted by the convention read, in pertinent part, “and

therefore all men are equally entitled to the free

exercise of religion, according to the dictates of

conscience,” excising any and all reference to any and

all exceptions for the peace, happiness or safety of the

larger society as determined by any civil magistrate.

tp://www. ty) ights/vdr

'® See Constitutional Debates on Freedom of Religion, p. 31 (J.

Patrick & G. Long, eds., Greenwood Press: 1999).

22

Nine years later, in his 1785 Memorial and

Remonstrance, Madison painstakingly explained the

absolute principle upon which the free exercise of

religion rests. The right “is unalienable ... because

what is here a right towards men, is a duty towards

the Creator”"’:

It is the duty of every man to render to the

Creator such homage and such only as he

believes to be acceptable to him. This duty is

precedent, both in order of time and in degree

of obligation, to the claims of Civil Society.

Before any man can be considered as a

member of Civil Society, he must be considered

as a subject of the Governour of the Universe:

And if a member of Civil Society, who enters

into any subordinate Association, must always

do it with a reservation of his duty to the

General Authority; much more must every

man who becomes a member of any particular

Civil Society, do it with a saving of his

allegiance to the Universal Sovereign. We

maintain therefore that in matters of Religion,

no man’s right is abridged by the institution of

Civil Society and that Religion is wholly

exempt from its cognizance. [/d. (emphasis

added.)]

'’ “Memorial and Remonstrance,” The Founders’ Constitution at

82.

23

C. Free Exercise Restricted, and Now

Revived.

For 170 years after the ratification of the Bill of

Rights, Madison’s jurisdictional principle went

unchallenged.”* In 1963, however, the Supreme Court

departed from that tradition, treating the free exercise

guarantee as if it were a mere rule of religious

toleration, and condemning the jurisdictional principle

to apply only to those cases involving “religious belief.”

As for laws impacting on “religious practices,” the

Court created a judicial balancing test in deciding

whether the law was compelling enough to override a

person’s religious exercise.'” That atextual experiment

came to an end in 1990 when the Court acknowledged

again that the jurisdictional principle undergirded a

free exercise guarantee that included not only belief,

but practices outside the authority of the civil

government:

[T]he “exercise of religion” often involves not

only belief and profession but the performance

of (or abstention from) physical acts:

assembling with others for a worship service,

participating in sacramental use of bread and

wine, proselytizing, abstaining from ... certain

‘8 See H. Titus, “The Free Exercise Clause: Past, Present and

Future,” 6 REGENT L. REV. 7, 10-15 (1995).

'9 Td. at 15-22.

24

modes of transportation. [Employment

Division v. Smith, 494 U.S. 872, 877 (1990).”"]

Having rejected tolerance as the governing principle of

the free exercise guarantee, the Smith Court rejected

the belief/practice dichotomy, returning the Court to

the text’s jurisdictional principle. Although the state

had no jurisdiction to regulate “religion,” the Smith

Court ruled that the free exercise guarantee did not

“excuse ... compliance” with an “otherwise valid law

prohibiting conduct that the State is free to regulate.”

Smith, 494 U.S. at 878-79 (emphasis added).

Whether the state is “free” to regulate particular

conduct is, then, determined by the original definition

of “religion” in the free exercise guarantee itself. This

is the teaching of the original First Amendment text as

illumined by the express definition of religion of its

Virginia forerunner. And this, in turn, is the lesson of

this Court in Hosanna-Tabor Evangelical Lutheran

Church and School v. EEOC, 565 U.S. _, 132 S.Ct.

694 (2012). In Hosanna-Tabor, this Court rejected the

EEOC’s argument that the American Disabilities Act's

prohibition of employer retaliation against employees

filing a grievance under the Act was immune from a

free exercise challenge because it was a “neutral law of

general applicability.” See id., 132 S.Ct. at 706-07.

The Court found that the internal governance of a

church body, including the hiring and firing of

ministers, is outside the jurisdiction of the federal

government. While the Court did not explicitly pose

2° See also Titus, “The Free Exercise Clause” at 22-23.

25

the issue as to whether such employment relations

involve duties owed to the Creator, enforceable only

“by reason and conviction, not by force or violence,” the

Court relied upon ecclesiastical history to establish

that the free exercise guarantee grew out of a

jurisdictional conflict between parishioners and the

English monarchy over church self-government. Id.,

132 S.Ct. at 702-03. “[T]he Religion Clauses,” Chief

Justice Roberts wrote, “ensured that the new Federal

Government — unlike the English Crown — would

have no role in filling ecclesiastical offices,” citing in

support none other than James Madison who the Chief

Justice reminded us was “the leading architect of the

religion clauses of the First Amendment.” Id. at 703.

As chief architect of the First Amendment, it was

Madison, along with Jefferson, who understood that it

erected a jurisdictional barrier between matters that

belonged to church government and matters that

belonged to civil government of the state.*’ The state

has absolutely no jurisdiction over duties owed to the

Creator which, by nature, are enforceable only “by

reason and conviction.”

D. The Contraceptive Services Mandate

Violates Freedom of Opinion.

Although Jefferson’s Bill to Establish Religious

Freedom, as enacted by the Virginia Assembly,

reduced Jefferson’s predicate statement to the single

phrase — “that Almighty God hath created the mind

21 See also Matthew 22:20-21.

26

free” — the change did not signal any narrowing of the

scope of the Act. To the contrary, both the preamble to

the initial Bill and the one in the Act adopted by the

Assembly laid the groundwork for the first principle of

the free exercise of religion: “[T]hat to compel a man

to furnish contributions of money for the propagation

of opinions which he disbelieves, is sinful and

tyrannical.” See 5 The Founders’ Constitution at 77,

84. And this first principle” of the free exercise of

religion is first among those violated by the ACA

contraceptive mandate.

As revealed in Section I, supra, the contraceptive

mandate is the product of the 16-member IOM

Committee, operating under a charge from the Office

of the Assistant Secretary for Planning and Evaluation

(““ASPE”) of HHS. IOM Comm. Report at 1. In

pertinent part, the charge reads:

The [IOM] will convene an expert committee to

review what preventive services are necessary

for women’s health and well-being and

should be considered in the development of

comprehensive guidelines for preventive

services for women.... ASPE will use the

information and recommendations from

*? The principle is akin to the “speaker autonomy” rule derived by

this Court from the First Amendment. See Hurley v. Irish-

American Lesbian and Bisexual Group of Boston, 515 U.S. 557,

573, 575 (1995) (“[T]}his use of the State’s power violates the

fundamental rule of protection under the First Amendment, that

a speaker has the autonomy to choose the content of his own

message,” which includes the right to choose “not to propound a

particular point of view.”)

27

the committee’s report to guide policy and

program development related to provisions in

the [ACA] addressing preventive services for

women. [/d. at 2 (emphasis added).}

Among the information and recommendations of the

IOM Committee is the contraceptive services mandate,

the specific goal of which is “a reduction in unintended

pregnancies.” IOM Comm. Report at 10. Included in

the means to reach this goal are “patient education

and counseling for women with reproductive capacity.”

Id. In a more detailed exposition of its

recommendation, the IOM Committee Report states

that education and counseling “are provided to prevent

unintended pregnancies, which is defined “as a

pregnancy that is either unwanted or mistimed at the

time of conception” (id. at 102), the ultimate goal being

“that ‘all pregnancies should be intended.” Jd. at 104.

Unsurprisingly, the IOM Committee's

recommended one-dimensional education and

counseling services are geared to encourage and guide

women with reproductive capacity to use

contraceptives (including abortifacients) to prevent

and to end pregnancies. IOM Comm. Report at 107

Education and counseling are important

components of family planning services

because they provide information about the

availability of contraceptive options, elucidate

method-specific risks and benefits for the

individual woman, and provide instruction in

effective use of the chosen method. [/d.]

28

Based on “[s]ystematic evidence reviews and other

peer-reviewed studies [that] provide evidence that

contraception and contraceptive counseling are

effective at reducing unintended pregnancies,” the

IOM Committee Report strongly recommended that

both be added to the “array of preventive services

available to women under the ACA.” Id. at 109.

The IOM Committee’s message is unmistakable:

Female sexual activity without risk of conception to a

full-term pregnancy is to be encouraged by the

contraceptive mandate, not only by making a wide

range of contraceptives/abortifacients available, but by

an education and counseling program designed to

ensure that more and more women do not get pregnant

unless “at the point of conception” they want to. This

mandate is grounded in the “opinion” of the IOM’s 16-

member committee that a woman’s “health and well-

being” are adversely affected by the risk of an

unwanted pregnancy. To reduce risks of unplanned

pregnancies, the IOM Committee recommended, and

HHS adopted, an educational and counseling program

encouraging and promoting the use of a wide range of

contraceptives, including FDA-approved abortifacients.

See id. at 109-10.

By adopting [OM Committee opinions on such

contraceptive use as necessary to achieve women’s

health and well-being, HHS would compel the Little

Sisters to facilitate ACA’s contraceptive services

mandate, to provide their employees education and

counseling that propagate opinions on women’s “health

and well-being” contrary to the Catholic doctrine that

they espouse and live by. This coercive plan is backed

29

up by stiff monetary fines for noncompliance. See

Little Sisters Br. at 21, 27-33.

For HHS to compel Little Sisters to facilitate the

implementation of its mandate, the IOM Committee's

opinion as to the health and well-being of their female

employees should be recognized by any fair observer to

be “both sinful and tyrannical.” It is sinful because

HHS is violating the Little Sisters’ vow of obedience to

God. It is tyrannical because HHS is employing force

and violence to require the Little Sisters to support

and promote an opinion on human reproduction and

life held by an IOM Committee of men and women who

do not share the Little Sisters’ Catholic faith.

The HHS mandate would also destroy the free

marketplace of ideas established by the free exercise

guarantee, by requiring the Little Sisters to aid and

abet the IOM Committee’s proselytizing efforts in

support of a female reproductive health policy that

would sacrifice innocent life in furtherance of a

lifestyle that exalts sexual license without risk of

unintended pregnancy. As such, the contraceptive

mandate violates the free exercise of religion which

prohibits the government from using its power to force

any person to engage in any form of “proselytizing”

which, according to Smith, is conduct that the state is

not free to regulate. See Smith, 494 U.S. at 878-79.

30

V THE COURT SHOULD ORDER

RE-BRIEFING ON WHETHER THE

CONTRACEPTION/ABORTIFACIENT

MANDATE OF THE AFFORDABLE CARE

ACT VIOLATES THE FREE EXERCISE

CLAUSE.

In this case, certiorari was granted for review of

seven petitions, emanating out of four cases decided in

2014 and 2015 by four different U.S. Courts of Appeals

(Third, Fifth, Tenth, and District of Columbia). Each

petition for certiorari presented different questions for

review.”’ Except for one question contained in one

petition, review was sought only of the statutory issue

whether the RFRA was violated by the Affordable Care

Act’s contraception/abortifacient mandate.”* The lone

exception was the Little Sisters Petition, which

presented as its third question:

Does the First Amendment allow HHS to

discriminate among nonprofit religious

employers who share the same _ sincere

religious objections to the contraceptive

mandate by exempting some _ religious

employers while insisting that others comply?

[Little Sisters Pet. for Cert. at ii (emphasis

added).]

** See Appendix Section I for the questions presented by the

various petitioners.

** Although the issue presented by Southern Nazarene University

asserted a “free exercise violation,” that claim related to RFRA.

Southern Nazarene University Petition for Certiorari, p. i.

31

Indeed, in the Little Sisters of the Poor Home for

the Aged v. Burwell, 794 F.3d 1151 (10 Cir. 2015), the

Tenth Circuit conducted a complete Free Exercise

clause analysis, ultimately finding no violation because

“the Mandate is both neutral and generally applicable

and supported by a rational basis....” 794 F.3d at 1199.

Additionally, one other Court of Appeals below

addressed the Free Exercise Clause issue — Priests for

Life v. Department of Health and Human Services,

772 F.3d 229 (D.C. Cir. 2014), ultimately concluding

that “[b]ecause the contraceptive coverage requirement

is a neutral law of general applicability, Plaintiffs’ free

exercise claim fails.” 772 F.3d at 269. However, when

certiorari was granted, the Court expressly declined to

review the constitutional issue raised by Little Sisters

of the Poor or any other constitutional issue.”

Accordingly, the questions presented in the opening

brief filed jointly by the Little Sisters and Priests for

Life, et al., revised the questions presented somewhat

to eliminate any constitutional reference and limit the

scope of the case to RFRA.” Neither petitioners’ brief

presented any First Amendment-based arguments.

This Court’s refusal to consider the First

Amendment constitutional issue takes the process of

constitutional exclusion one step beyond that which

occurred last year in the case of Burwell v. Hobby

Lobby Stores, Inc. There, one of the two cases

consolidated only for purposes of oral argument, Hobby

= :/I gov/

*° See Appendix Section II for the questions on which certiorari

was granted.

32

Lobby, presented only a RFRA question for review.

But the case consolidated with it, Conestoga Wood

Specialties, argued on both RFRA and the First

Amendment Free Exercise Clause. The Court granted

certiorari on all issues.”

These amici filed an amicus curiae brief” on the

Free Exercise Clause issue raised by Conestoga Wood

Specialties, eschewing participation in the Hobby

Lobby case, because it believed that the jurisdictional

barrier of the Free Exercise Clause provided the

businesses principled and categorical protection

against government coercion. Perhaps because it

found in favor of the businesses based on RFRA, the

majority of this Court avoided completely the Free

Exercise Clause issue. However, the problem of this

approach was that the victory for the businesses may

prove to be a hollow one — as this Court’s decision was

based on a finding that the Obamacare

contraception/abortifacient mandate was not “the least

restrictive means of serving a compelling government

interest.” Hobby Lobby at 2759. The Court ruled that

the government had to accommodate the religious

beliefs of Conestoga and Hobby Lobby, because “the

Government [could] assume the cost of providing the

four contraceptives at issue,” thereby providing certain

"7 http://www. v/ . pdf.

** Amicus brief of Eberle Communications Group, Inc., et al.,

<anestemn Seed Suatiaitins. Care, ¥. Ganainn Con. 28, me.

33

access to abortifacients, the cost of which would be

paid by the taxpayer instead of those employers who

have a religious objection to abortion. Jd. at 2780. As

Justice Kennedy stated in his concurrence: “It is

important to confirm that a premise of the Court’s

opinion is its assumption that the HHS regulation

here at issue furthers a legitimate and compelling

interest in the health of female employees,” including

access to abortion. Jd. at 2786. In other words, the

decision rendered by this Court could not have been

more narrow in its protection of the free exercise of

religion, and did nothing whatsoever to protect the

sanctity of human life.”

The Hobby Lobby dissent took time away from its

commentary on RFRA to assert that “Any First

Amendment Free Exercise Clause claim Hobby Lobby

or Conestoga might assert is foreclosed by this Court’s

decision in Employment Div., Dept. of Human

Resources of Ore. v. Smith, 494 U.S. 872 (1990).”

Hobby Lobby at 2790 (Ginsburg, J., dissenting).

Indeed, Justice Ginsburg’s view appears to be the

prevailing view of most of the petitioners in this case.

As Judge Marjorie Rendell” stated, in writing for the

*® In Priests for Life, the D.C. Circuit accurately reported that

“(t]he Supreme Court in Hobby Lobby assumed, without deciding,

that the governmental interest in ‘guaranteeing cost-free access’

to contraception was ‘compelling. [citation omitted].” 772 F.3d at

257.

*® Senior Judge Rendell is no stranger to the politics of abortion,

as the (reportedly separated) wife of former Democratic

Pennsylvania Governor Ed Rendell, who was considered as a

running mate for Senator John Kerry in his 2004 presidential

34

Third Circuit in Geneva College v. Secretary, HHS,

778 F.3d 422 (3d Cir. 2015):

Congress enacted RFRA in 1993 in response to

the Supreme Court’s decision in Employment

Division, Department of Human Resources of

Oregon v. Smith. In Smith, the Supreme

Court rejected the balancing test for

evaluating claims under the Free Exercise

Clause of the First Amendment set forth in

Sherbert v. Verner and Wisconsin v. Yoder

under which the Court asked whether the

challenged law substantially burdened a

religious practice and, if it did, whether that

burden was justified by a compelling

governmental interest.... Congress then

passed RFRA to legislatively overrule the

Smith standard for analyzing claims under the

Free Exercise Clause.... [Jd. at 430-31

(citations omitted). |

Indeed, in the early 1900’s, RFRA had the support

of many Christian and other organizations, believing

that those who placed high value on the Free Exercise

Clause had put one over on President Bill Clinton, who

signed the bill into law near the end of his first year in

office, on November 16, 1993. Others, however, saw

the problems inherent in RFRA from the outset, and

thought that it was President Clinton and those

supporting RFRA in Congress who better understood

how RFRA could be abused by a largely secular federal

campaign and who continues to be a prominent Democratic

politician.

35

judiciary which had repeatedly demonstrated itself at

odds with the American people on matters involving

religious liberties.*’ Congress was exposed to these

concerns, inter alia, through testimony.” Those

concerns need to be revisited.

First, the protection of religious liberty promised

by RFRA proponents was dramatically overstated. It

was naively assumed by many that the “compelling

interest” test would provide a wide berth for a variety

of religious claims. In fact, however, after two initial

victories — one involving unemployment benefits and

the other education of children — the Supreme Court

deferred to claimed government interests in every free

exercise case, giving “short shrift to the religious claim

and the significant burden imposed on the dissenting

*' See e.g., McCollum v. Board of Education, 333 U.S. 201 (1948)

(public school released time); Engel v. Vitale, 370 U.S. 421 (1962)

(public school prayer); Abington School District v. Schempp, 374

U.S. 203 (1963) (public school Bible reading); Stone v. Graham,

449 U.S. 39 (1980) (posting of the Ten Commandments in public

schools); Edwards v. Aguillard, 482 U.S. 578 (1987) (teaching of

creation in public schools). But see Town of Greece v. Galloway,

572 U.S. ___, 134 S.Ct. 1811 (2014) (opening legislative sessions

with prayer) where the Court may have returned to historic

principles.

% See, e.g., testimony of Professor Robert A. Destro, Catholic

University of America, and of Herbert W. Titus, then Dean,

Regent University School of Law, Hearings before the

Subcommittee on Civil and Constitutional Rights of the House

Committee on the Judiciary, on H.R. 2797, Religious Freedom

Restoration Act of 1991 (May 13-24, 1992).

/ justice.gov/sites/d t/files/jmd/ cy/

2014/07/

36

religious adherent.” Titus, “The Free Exercise

Clause,” at 7, 19-22.

Second, the legal premise of RFRA was incorrect.

Based on the use of three balancing tests, RFRA

provides:

(a) In general

Government shall not substantially burden a

person’s exercise of religion even if the burden

results from a rule of general applicability,

except as provided in subsection (b) of this

section.

(b) Exception

Government may substantially burden a

person’s exercise of religion only if it

demonstrates that application of the burden to

the person-

(1) is in furtherance of a compelling

governmental interest; and

(2) is the least restrictive means of

furthering that compelling

governmental interest. [42 U.S. Code

§ 2000bb-l(a) and (b) (emphasis

added).]

Thus, RFRA actually makes it the law of the United

States that, under certain circumstances, as in the

seemingly unreviewable opinion of a majority of the

nine unelected lawyers then sitting on this Court, the

government “may substantially burden a person’s

exercise of religion...” when the government’s claimed

interest really mattered. See United States v. Lee, 455

U.S. 252 (1982). Such a notion would have been

37

unthinkable to Madison, or Jefferson, for the reasons

discussed in Section IV, supra.

RFRA also shifts the focus of the debate. As noted

author M. Stanton Evans observed: “He who writes

the resolved clause wins the debate.” If the issue is

the First Amendment, the question is (or at least

should be) whether the law in question “prohibit[s] the

free exercise [of religion]” based on the fixed authorial

intent™ of the Founders. However, if the issue is

RFRA, the question is whether there is a substantial

burden, and if so, whether there is a compelling

government interest, and whether it is the least

restrictive means of achieving that interest based on

the personal views of modern judges. Each RFRA

subsection presupposes judicial use of a balancing test

of the sort that Justice Scalia described in a different

context to be a “judge-empowering ‘interest-balancing

inquiry.” District of Columbia v. Heller, 554 U.S. 570,

634 (2008). Such tests focus attention away from the

jurisdictional limits imposed on the federal

government by the First Amendment, to the policy

preferences of modern federal judges. It should not

*’ See E.D. Hirsch, Jr., Validity in Interpretation at viii, 1, 5, 212-

13 (YALE UNTV. PRESS 1967).

** For example, by requiring the case to be litigated on RFRA

grounds, the Supreme Court deprived the Petitioners of even

arguing that the contraceptive/abortifacient mandate operates to

interfere with the terms of the relationship between a religious

organization and its employees — which is protected under the

First Amendment. See Hosanna-Tabor Evangelical] Lutheran

Church and School v. Equal Employment Opportunity

Commission, et al.,565U.S.___, 182 S.Ct. 694 (2012), where this

38

be considered strange that these amici would prefer

that the issue be decided based on the views of the

Founders who fashioned the First Amendment, rather

than modern federal judges who have demonstrated

that they hold other values which they are rolling out

in the guise of discovering new meanings of an

evolving Constitution. See, e.g., Obergefell v. Hodges,

576 U.S. __, 185 S.Ct. 2584 (2015).

Moreover, if the proof is in the pudding, it can now

be seen that RFRA provided none of the Petitioners

any protection whatsoever from a law prohibiting the

free exercise of Petitioners’ anti-abortion religious

beliefs in any of the four Court of Appeals decisions

below. Three of the Court of Appeals decisions found

no substantial burden on free exercise. Only in the

Priests for Life case did any of the courts of appeal

even reach the secondary issue of “compelling

government interest,” and there, the D.C. Circuit

found that there was one. Indeed, RFRA has proven to

be a weak reed on which to predicate the religious

liberties of the American people.

Thus, it can be seen that this Court, by excluding

any briefing of the Free Exercise issue in this case, has

tilted the playing field — making it virtually

impossible for the Petitioners to achieve a meaningful

victory. The only type of victory that may be possible

Court unanimously ruled that federal discrimination laws may

not constitutionally constrain the employment relationship

between religious organizations and ministry employees, no

matter how strong the government’s interest may be to protecting

disabled persons from employment discrimination.

39

would be analogous to the type of Pyrrhic victory

achieved in Hobby Lobby, where the taxpayers were

saddled with the obligation to pay for the abortions of

those Hobby Lobby employees who want them.

CONCLUSION

For the reasons set out above, this Court should

revise the questions presented on which certiorari is

granted, and ask the parties to participate in

supplemental briefing on the Free Exercise Clause

issue. Unless this Court pushes this “reset button,” it

could easily reach a decision that RFRA provides no

statutory protection for Petitioners, forcing them to be

morally complicit in facilitating abortion, even though

a decision reached under the Free Exercise Clause

would have demanded the opposite result. If such a

result were reached as a result of this Court’s tactical

exclusion of the constitutional defenses available to

Petitioners, its decision would not resolve the central

First Amendment jurisdictional issue and therefore

would deserve no respect from the American people.

Respectfully submitted,

MICHAEL CONNELLY HERBERT W TITUS*

U.S. Justice Foundation WILLIAM J. OLSON

932 D Street, Ste. 2 JEREMIAH L. MORGAN

Ramona, CA 92065 JOHN S. MILES

Attorney for Amicus Curiae WILLIAM J. OLSON, P.C.

U.S. Justice Foundation 370 Maple Ave. W., Ste. 4

Vienna, VA 22180-5615

*Counsel of Record (703) 356-5070

January 11, 2016 wjo@mindspring.com

Attorneys for Amici Curiae

APPENDIX

A-1

APPENDIX:

QUESTIONS PRESENTED BY THE PARTIES

AND

ON WHICH CERTIORARI WAS GRANTED

I. QUESTIONS PRESENTED BY THE PARTIES.

Third Circuit

Zubik v. Burwell, 778 F.3d 422 (3% Cir. 2015)

presented two questions:

1. Whether the HHS Mandate and its

“accommodation” violate the Religious Freedom

Restoration Act (“RFRA”) by forcing religious

nonprofits to act in violation of their sincerely

held religious beliefs, when the Government has

not proven that this compulsion is the least

restrictive means of advancing any compelling

interest.

2. Whether RFRA allows the Government to

divide the Catholic Church by creating a narrow

“religious employer” exemption that applies to

“houses of worship” but excludes the Church’s

separately incorporated nonprofit entities that

implement core Catholic teaching by providing

charitable and educational services to their

communities.

[http://www.supremecourt.gov/qp/14-01418qp.pdf.}

NOTE: Grant of certiorari was limited to question

e

Geneva College v. Burwell, 778 F.3d 442 (3 Cir. 2015)

presented one question:

A-2

Whether, under Hobby Lobby, the Mandate’s

imposition of seamless abortifacient coverage on

objecting religious nonprofit organizations’ health

plans substantially burdens religious exercise and

violates RFRA.

ttp://www. mecourt.gov/gp/15-00191

Fifth Circuit

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

449 (5" Cir. 2015) presented one question:

Does the availability of a regulatory option for

nonpre“t religious employers to comply with

HHS’s contraceptive mandate eliminate either the

substantial burden on religious exercise or the

violation of RFRA that this Court recognized in

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

2751 (2014)?

[http://www.supremecourt.gov/qp/15-00035qp.pdf]

Tenth Circuit

Little Sist f the P Home for the d v.

Burwell, 794 F.3d 1151 (10 Cir. 2015) presented three

questions:

1. Does the availability of a regulatory method

for nonprofit religious employers to comply with

HHS’s contraceptive mandate eliminate either the

substantial burden on religious exercise or the

violation of RFRA that this Court recognized in

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

2751 (2014)?

2. Can HHS satisfy RFRA’s demanding test for

overriding sincerely held religious objections in

A-3

circumstances where HHS itself insists that

overriding the religious objection will not fulfill

HHS’s regulatory objective - namely, the provision

of no-cost contraceptives to the objector’s

employees?

3. Does the First Amendment allow HHS to

discriminate among nonprofit religious employers

who share the same sincere religious objections to

the contraceptive mandate by exempting some

religious employers while insisting that others

comply? [Emphasis added.]

NOTE: Grant of certiorari was limited to questions

1 and 2.

[http://www.supremecourt.gov/qp/15-00105qp.pdf]

Southern Nazarene University v. Burwell, 794 F.3d

1151 (10" Cir. 2015):

Whether the alternative means for nonprofit

religious employers to comply with the ACA’s

contraceptive-coverage Mandate alters Hobby

Lobby’s substantial-burden analysis or

identification of a free exercise violation under

RFRA.

{http://www.su urt.gov/qp/15-00119aqp.

D.C. Circuit

Priests for Life v. Department of Health and Human

Services, 772 F.3d 229 (D.C. Cir. 2014) presented one

question:

The question presented is whether the

contraceptive services mandate of the Affordable

Care Act as applied to non-exempt, nonprofit

religious organizations violates the Religious

A-4

Freedom Restoration Act of 1993 (RFRA), 42

US C §§ 2000bb, et seq

tp://www.supremecourt.gov/ 4-0145

Roman Catholic Archbishop of Washington v. Burwell,

772 F.3d 229 (D.C. Cir. 2014) presented one issue:

Whether the Religious Freedom Restoration Act

(“RFRA”) allows the Government to force

objecting religious nonprofit organizations to

violate their beliefs by offering health plans with

“seamless” access to coverage for contraceptives,

abortifacients, and sterilization.

[http://www.supremecourt.gov/gp/14-01505qp.pdf]

II. QUESTIONS ON WHICH CERTIORARI WAS

GRANTED

In the two opening briefs for the petitioners, the

questions presented were revised somewhat from the

questions presented in their petitions, primarily to

adapt to the limitations on the grant of certiorari by

this Court, identified in the notes supra.

For petitioners in Nos. 14-1418, 14-1453, and 14-

1505, the questions presented are:

1. Whether the Government violates the

Religious Freedom Restoration Act (“RFRA”) by

forcing objecting religious nonprofit organizations

to comply with the HHS contraceptive mandate

under an alternative regulatory scheme that

requires these organizations to act in violation of

their sincerely held religious beliefs.

2. Whether the Government can satisfy RFRA’s

demanding test for overriding sincerely held

A-5

religious objections in circumstances where the

Government itself admits that overriding the

religious objection may not fulfill its regulatory

objective—namely, the provision of no-cost

contraceptives to objectors’ employees.

For petitioners in Nos. 15-35, 15-105, 15-119, and

15-191, the questions presented are:

1. Does the availability of a regulatory method

for nonprofit religious employers to comply with

HHS’s contraceptive mandate eliminate either the

substantial burden on religious exercise or the

violation of RFRA that this Court recognized in

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

2751 (2014)?

2. Can HHS satisfy RFRA’s demanding test for

overriding sincerely held religious objections in

circumstances where HHS itself insists that

overriding the religious objection may not fulfill

its regulatory objective—namely, the provision of

no-cost contraceptives to the objector’s employees?