Amicus Curiae Brief — E. Tex. Baptist Univ. v. Burwell, 136 S. Ct. 444 (2015) (No. 15-35)

No. 15-35

In the Supreme Court of the Gnited States

HOUSTON BAPTIST UNIVERSITY, EAST TEXAS

BAPTIST UNIVERSITY, AND WESTMINSTER

THEOLOGICAL SEMINARY, PETITIONERS,

SYLVIA MATHEWS BURWELL, SECRETARY OF

HEALTH & HUMAN SERVICES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF THE STATES OF TEXAS, OHIO,

ALABAMA, ARIZONA, FLORIDA, GEORGIA,

KANSAS, LOUISIANA, MICHIGAN, MONTANA,

NEVADA, OKLAHOMA, SOUTH CAROLINA,

SOUTH DAKOTA, UTAH, AND WEST VIRGINIA AS

AMICI CURIAE SUPPORTING PETITIONERS

KEN PAXTON

Attorney General of Texas

CHARLES E. Roy

First Assistant Attorney

General

MICHAEL DEWINE

Attorney General of Ohio

LUTHER STRANGE

Attorney General of Alabama

MARK BRNOVICH

Attorney General of Arizona

Scott A. KELLER

Solicitor General

Counsel of Record

J. CAMPBELL BARKER

Deputy Solicitor General

MICHAEL P. MURPHY

Assistant Solicitor General

Office of the General

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@

texasattorneygeneral.gov

(512) 936-1700

Counsel for Amici Curiae

(Additional counsel listed on inside cover)

PAMELA JO BONDI

Attorney General of Florida

SAMUEL S. OLENS

Attorney General of Georgia

DEREK SCHMIDT

Attorney Genera! of Kansas

JAMES D. “BUDDY” CALDWELL

Attorney General of Louisiana

BILL SCHUETTE

Attorney Genera! of Michigan

Tmmotny C. Fox

Attorney General of Montana

ADAM PAUL LAXALT

Attorney General of Nevada

E. Scott PRUITT

Attorney General of Oklahoma

ALAN WILSON

Attorney General of South Carolina

MARTY J. JACKLEY

Attorney General of South Dakota

SEAN D. REYES

Attorney General of Utah

PARKER DOUGLAS

Utah Federal Solicitor

PATRICK MORRISEY

Attorney General of West Virginia

TABLE OF CONTENTS

Page

pL TEN Tee i

SE CI Oe 1

Lt S| 2

| EET ERT ee aw a ae eee OT 5

I. There Is Little Value To Percolation:

Uncertainty About How RFRA Applies To

The Contraceptive Mandate Will Continue

Absent This Court’s Review........................-..--++++ 8

II. The Costs Of Delay Are Significant Because

Religious Adherents And Not Courts Should

Decide Whether Conduct Coerced By

Governmental Mandates Conflicts With Their

Sincerely Held Religious Beliefs........................ 11

A. The Improper Substantial-Burden Test

Applied Below Adjudicates The Merits Of

Adherents’ Religious Beliefs. ...................... 11

B. The Federal Executive’s Regulatory

Overreach Intrudes On Religious Liberty..21

C. Exempting Religious Nonprofits Would

Not Be Difficult And Would Afford Them

Equal Treatment With Like Adherents. ....22

D. Religious Nonprofits Are A Vital Thread

In States’ Social Fabric And Should Be

Given Latitude To Operate In Accordance

With Their Animating Religious Beliefs. ...24

ETA ASS i Ne ewe Oe NT 25

Addendum: “State RFRA” Provisions....................... 27

Q)

ss

TABLE OF AUTHORITIES

Page(s)

Cases:

Bowen v. Roy,

iia caiiitabaanleals 20

Burwell v. Hobby Lobby Stores, Inc.,

| 8 ee passim

Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520 (1993)............... 11-12

E. Tex. Baptist Univ. v. Sebelius,

988 F. Supp. 2d 743 (S.D. Tex. 2013).................... 10

Emp’ Div. v. Smith,

Ls aaa 15

Eternal Word Television Network, Inc. v.

Sec’y, U.S. Dep't of Health & Human Servs.,

756 F.3d 1339 (11th Cir. 2014).............................. 10

Geneva Coll. v. Sec’y, U.S. Dep’t of Health &

Human Servs., 778 F.3d 422 (3d Cir. 2015) ......... 10

Gonzales v. Raich,

EEE ESUCE ar aenene manera nem 7-8

Hernandez v. Comm’,

I ceeeanaaabdi 15

Horne v. USDA,

Eee ee 21

Hosanna-Tabor Evangelical Lutheran Church

& Sch. v. EEOC, 132 S. Ct. 694 (2012)........... 11, 21

Humphrey v. Lane,

728 N.E.2d 1039 (Ohio 2000) ...................ccccceccseseees 2

Lyng uv. Nw. Indian Cemetery Protective Ass'n,

TTA SEI eS 20

Presbyterian Church in U.S. v. Mary Elizabeth

Blue Hull Mem Presbyterian Church,

ET anne a a ee 15

Priests for Life v. U.S. Dep't of Health & Human

Servus., 772 F.3d 229 (D.C. Cir. 2014), reh’g en

banc denied (May 20, 2015)......................02. 9, 10, 19

Thomas v. Review Bd.,

CN EE 15, 20

Town of Greece v. Galloway,

| ea eee ll

Univ. of Notre Dame v. Burwell,

786 F.3d 606 (7th Cir. 2015) ..................ccccceeeeeenees 10

Util. Air Regulatory Grp. v. EPA,

I eel 21

Constitutional provisions and statute:

I seinen 2

a seubininianeniniomeie 2

ee aleeanaenianeaal 5

Other authorities:

I ici 7

130 Cong. Rec. $14,471 (Oct. 27, 1993)............0000.... 12

139 Cong. Rec. H2363 (May 11, 1993)...................... 12

I i sieiasidlinisiniemeeiiiie 7

EERE eae Neen TIO Ae 1

airline tt healiceiinlindiaalaiadibaad 1

Douglas Laycock & Oliver S. Thomas,

Interpreting the Religious Freedom

Restoration Act, 73 Tex. L. Rev. 209 (1994).......... 12

First. Am. Compl.,

E. Tex. Baptist Univ. v. Sebelius,

No. 4:12-cv-03009 (S.D. Tex. Aug. 6, 2013)............. 3

INTEREST OF AMICI CURIAE

Amici are the States of Texas, Ohio, Alabama, Ar-

izona, Florida, Georgia, Kansas, Louisiana, Michigan,

Montana, Nevada, Oklahoma, South Carolina, South

Dakota, Utah, and West Virginia.! They have a sub-

stantial interest in the participation of religious non-

profits as vibrant and vital threads in the social fabric

of the States. Religious nonprofits serve their commu-

nities in a host of ways, from caring for the most vul-

nerable members of society, to serving the elderly

with compassion, to providing the educations that al-

low individuals to pursue their own contributions to

society. It is paramount to the amici States that such

religious nonprofits—including the three Texas insti-

tutions here—can continue with those contributions.

Erecting impediments to their continued adherence to

their religious beliefs can threaten their continued

work, which is driven and shaped by those beliefs.

Moreover, the States have a substantial interest

in ensuring that courts do not demean religious beliefs

by second-guessing religious adherents’ line-drawing

about what conduct is prohibited to them as sinful or

immoral. The States’ interest in defending the dignity

1 Counsel of record for the parties received timely

notice of the intent to file this amicus brief. See Sup.

Ct. R. 32.2(b). A motion for leave to file this brief is not

required. See Sup. Ct. R. 37.4.

(1)

2

of religious convictions is reflected in the States’ own

laws. Twenty States statutorily protect religious lib-

erty from government intrusion.? Others States in-

clude in their constitutions protections that go beyond

rights recognized under the Free Exercise Clause of

the First Amendment.?

The amici States thus have a substantial interest

in protecting religious exercise from governmental in-

trusion. That interest is even more acute when reli-

gious practice is burdened, not by congressional enact-

ments, but by federal executive directives that do not

pursue their ends in the manner least restrictive of

religious liberty, as RFRA commands. Such executive

action skirts the rules laid down in a bipartisan enact-

ment about the respect due to religious adherents in

our pluralistic society.

SUMMARY OF ARGUMENT

The government already exempts from the con-

traceptive mandate any “grandfathered” insurance

plan, meaning a plan that has not been materially

2 Such general laws, often called state RFRAs,

have been enacted in Alabama, Arizona, Arkansas,

Connecticut, Florida, Idaho, Indiana, Kansas, Ken-

tucky, Louisiana, Mississippi, Missouri, New Mexico,

Oklahoma, Pennsylvania, Rhode Island, South Caro-

lina, Tennessee, Texas, and Virginia. See infra p. 27

(citations).

3 See, e.g., Ala. Const. art. I, § 3.01; Humphrey v.

Lane, 728 N.E.2d 1039, 1043 (Ohio 2000) (holding that

Article I, § 7, of the Ohio Constitution requires strict

scrutiny even for a generally applicable, religion-neu-

tral regulation that burdens religious exercise).

3

changed after the cutoff (which was before the contra-

ceptive mandate was proposed). Burwell v. Hobby

Lobby Stores, Inc., 134 S. Ct. 2751, 2766 (2014). That

exemption is based on administrative burden to em-

ployers. Likewise, the government exempts every em-

ployer of fewer than 50 full-time workers; those em-

ployers collectively employ tens of millions of people.

See First. Am. Compl. 9 12, E. Tex. Baptist Univ. v.

Sebelius, No. 4:12-cv-03009 (S.D. Tex. Aug. 6, 2013).

Petitioners seek the same sort of treatment. In

their case, it is based not on the secular burden of ad-

ministrative inconvenience, but on a sincere religious

conviction that complying with the disputed mandate

is forbidden. The government already accommodates

that religious conviction by providing an exemption

for churches. Yet the Executive Branch contends that

its denial of equal treatment to all employers with the

same sincere religious conviction escapes any scrutiny

at all under RFRA.

RFRA entitles petitioners to scrutiny of the Exec-

utive’s justification for depriving them of that exemp-

tion. Petitioners share with churches the same reli-

gious conviction about providing health insurance

without contracting with companies that will then

have to pay for drugs regarded as abortifacients. The

sincerity of that religious conviction is not disputed.

And the Executive’s regulation substantially burdens

petitioners in seeking to abide by that religious con-

viction, as petitioners are subject to substantial mon-

etary liability for noncompliance. Those conclusions

establish that RFRA scrutiny applies.

4

In considering RFRA, however, several courts

have departed from this Court’s instructions in Hobby

Lobby. Under RFRA’s substantial-burden inquiry,

courts should judge whether the government coerces

a person to act in a way the person sincerely believes

violates religious principle and whether the coercion

is substantial. Going beyond that inquiry—attempt-

ing to judge whether the religious conviction has a

truly substantial justification—will insert courts into

areas reserved for religious debate. Religious adher-

ents will not all have the same answers on such ques-

tions of morality. But for courts to privilege their

views on such religious determinations over adher-

ents’ views undermines the respect and tolerance en-

shrined in laws like RFRA.

Whether RFRA directs such an approach to the

substantial-burden inquiry is an important question

deserving this Court’s attention. There is no value to

further delay. The issue has sufficiently percolated in

the lower courts, and there is no prospect that the con-

fusion will resolve itself with time.

A proper approach to the substantial-burden test

will vindicate Congress’s design. Rather than the Ex-

ecutive Branch side-stepping any scrutiny of how its

contraceptive mandate comports with religious lLib-

erty, its regulatory means will be measured against

other means that would achieve any compelling gov-

ernmental interest animating them. That balancing

reflects traditions of religious tolerance that are foun-

dational to this country.

The Executive has not demonstrated that its

mandate to petitioners is the least restrictive means

5

of achieving a compelling governmental interest, as

RFRA requires. 42 U.S.C. § 2000bb-1. The Executive

has already exempted churches and many other em-

ployers, showing its understanding that means less

restrictive than the mandate will serve its general in-

terest in promoting access to contraceptives. It is dif-

ficult to see any basis for finding a compelling govern-

mental interest in regulating religious objectors ra-

ther than using whatever methods the government

deems acceptable for employees of churches and other

employers already excluded from the mandate. The

court of appeals’ judgment should be reversed.

ARGUMENT

Many employers around the country feel driven

by their faith to care for their employees by providing

them health insurance. But some employers find it in-

compatible with their religious convictions to provide

that health insurance when it means contracting with

a company that then, by virtue of that very relation-

ship, becomes obligated to pay for drugs regarded as

abortifacients. What matters under that religious be-

lief about facilitation is not how the payment is made,

but that the employer not take such a linking act. As

this Court recognized just last year, the validity of

such religious line-drawing is not for the courts to sec-

ond-guess:

This belief implicates a difficult and im-

portant question of religion and moral] philos-

ophy, namely, the circumstances under

which it is wrong for a person to verform an

act that is innocent in itself but thet has the

6

effect of enabling or facilitating the commis-

sion of an immoral act by another. Arrogating

the authority to provide a binding national

answer to this religious and philosophical

question, HHS and the principal dissent in

effect tell the plaintiffs that their beliefs are

flawed. For good reason, we have repeatedly

refused to take such a step.

Hobby Lobby, 134 S. Ct. at 2778 (footnote omitted).

Before the contraceptive mandate, employers

could abide by that religious belief by offering health

insurance without engaging in an insurance relation-

ship that would result in payment for drugs they re-

gard as abortifacients. After the contraceptive man-

date, however, some employers are unable to abide by

that religious belief without incurring substantial

financial liability. If they continue to engage a com-

pany to issue or administer health insurance for their

employees, that company is then and only then legally

required to cover drugs that the employers regard as

killing human life. The supposed “accommodation” of-

fered by the government does not change that fact, be-

cause how a hired company pays for the drugs is im-

material to this religious belief. Hence, the mandate

will coerce employers to proceed with a course of ac-

tion despite a belief in its religious impermissibility,

because the alternative is not providing health insur-

ance at all and thus incurring serious fines.

Troublingly, that dilemma is faced by only some

employers with those religious convictions. The Exec-

utive has recognized the religious-liberty burden and

therefore exempted churches (as well their integrated

7

auxiliaries and associations of churches) from the con-

traceptive mandate, relieving them of the coercion to

violate their religious beliefs in providing health in-

surance. Those employers can still hire an insurance

issuer or administrator to provide insurance for their

employees without violating their religious convic-

tions by that act bringing about coverage for drugs re-

garded as abortifacients. See Hobby Lobby, 134 S. Ct.

at 2763 (noting exemption); 45 C.F.R. § 147.131 (au-

thorizing exemption). There is no apparent reason

why the religious-liberty burden that underlies this

exemption for churches does not even count under

RFRA when felt by religious charities, schools, and

other nonprofits holding the same religious beliefs.

The contraceptive mandate’s ongoing coercion of

employers to violate their religious convictions has led

to nationwide litigation and confusion about the valid-

ity of the mandate in its full reach. Challenges remain

pending in multiple circuits, and the circuit and dis-

trict judges who have addressed this issue have issued

lengthy opinions reaching different conclusions.

The cost of that ongoing doubt about the man-

date’s validity is significant; it has tremendous finan-

cial and spiritual repercussions for objecting employ-

ers. Legal challenges continue to simmer nationwide,

and there is no visible prospect of orderly resolution

without this Court’s review. In short, the question

whether the alternative method of mandate compli-

ance justifies departure from Hobby Lobby’s approach

to RFRA is an “important question of federal law” that

warrants nationwide resolution. See Sup. Ct. R. 10(c);

see also Gonzales v. Raich, 545 U.S. 1, 9 (2005) (“The

8

obvious importance of the case prompted our grant of

certiorari.”).

I. There Is Little Value To Percolation: Uncer-

tainty About How RFRA Applies To The

Contraceptive Mandate Will Continue Ab-

sent This Court’s Review.

The manner in which RFRA’s burden test applies

to the contraceptive mandate, now that the govern-

ment is relying on the mandate’s self-described “ac-

commodation,” is in serious dispute. Hobby Lobby in-

structs that RFRA’s substantial-burden test does not

allow courts to question a religious adherent’s judg-

ment that certain conduct makes the adherent mor-

ally complicit and is therefore forbidden to them. 134

S. Ct. at 2778. Under Hobby Lobby, the substantial-

burden test instead looks at whether a regulation “de-

mands that [practitioners] engage in conduct that se-

riously violates their religious beliefs,” id. at 2775,

and whether the consequences of not yielding to the

regulatory command are substantial, id. at 2776 (not-

ing that the fines at issue are “surely substantial”); id.

at 2779 (“Because the contraceptive mandate forces

them to pay an enormous sum of money .. . if they

insist on providing insurance coverage in accordance

with their religious beliefs, the mandate clearly im-

poses a substantial burden on those beliefs.”).

The objecting nonprofits in the many cases work-

ing their way through the courts have made clear

their religious conviction that they may not include

certain drugs under their insurance or hire an insur-

ance issuer or administrator that then must use its

9

position to pay for those drugs. No one doubts the sin-

cerity of that conviction. Before the mandate, the reli-

gious nonprofits could adhere to that conviction. After

the mandate, the nonprofits are forced to proceed in

one of those two objectionable ways, or else pay a hefty

fine.

Hobby Lobby’s reasoning directs that this man-

date constitutes a substantial burden on the objectors’

religious exercise, as it triggers serious consequences

for adherents who do not behave in a way contrary to

their religious beliefs. Nonetheless, several courts of

appeals have held that RFRA scrutiny does not even

apply because no substantial burden exists.

Their reasoning creates considerable uncertainty

about RFRA’s scope. Some courts overlook the full re-

ligious objection by characterizing it differently. That

happened below when the court of appeals concluded,

“What the regulations require of the plaintiffs here

has nothing to do with providing contraceptives.” Pet.

App. 25a. But substantial fines coerce petitioners

themselves to make certain arrangements, and that

conduct serves as a link to the coverage outcome. Pe-

titioners are objecting that their religion views such

conduct as prohibited facilitation.

Other courts move past the coercion of adherents

to act contrary to religious obligations, not by rechar-

acterizing the religious obligations, but by deeming

those obligations “de minimis” or inconsequential. See

Priests for Life v. U.S. Dep't of Health & Human

Servs., 772 F.3d 229, 249 (D.C. Cir. 2014) (concluding

that the mandate only requires sending a single sheet

of paper and thus that the mandate “imposes a de

10

minimis requirement on any eligible organization”);

Geneva Coll. v. Sec’y, U.S. Dep’t of Health & Human

Servs., 778 F.3d 422, 442 (3d Cir. 2015) (deeming the

asserted burden insubstantial based on a “qualitative

assessment” of how the regulation “imposes on the ap-

pellees’ exercise of religion”).

Departing from both of those approaches, five fed-

eral judges would find a substantial burden. They re-

ject their colleagues’ reasoning as amounting to a sec-

ond-guessing of religious convictions that cannot be

reconciled with Hobby Lobby. See Slip op. 11, Priests

for Life, No. 13-5368 (May 20, 2015) (Brown, J., dis-

senting from denial of reh’g en banc, joined by Hen-

derson, J.) (stating that no “law or precedent grants

[any court] authority to conduct an independent in-

quiry into the correctness of this belief”); Slip op. 8, id.

(Kavanaugh, J., dissenting from denial of reh’g en

banc) (same); Univ. of Notre Dame v. Burwell, 786

F.3d 606, 627-28 (7th Cir. 2015) (Flaum, J., dissent-

ing) (same); Eternal Word Television Network, Inc. v.

Sec’y, U.S. Dep’t of Health & Human Servs., 756 F.3d

1339, 1340-41 (11th Cir. 2014) (Pryor, J., concurring)

(same). And district judges have likewise disagreed

with each other about proceeding in that way. See,

e.g., E. Tex. Baptist Univ. v. Sebelius, 988 F. Supp. 2d

743, 747 (S.D. Tex. 2013) (Rosenthal, J.) (“Several dis-

trict courts have already issued opinions, with incon-

sistent results.”).

In short, substantial confusion exists in the lower

courts about the proper application of Hobby Lobby’s

holding to religious adherents who sincerely believe

that either type of conduct coerced by the contracep-

11

tive mandate renders the adherents complicit accord-

ing to their religious principles. The question has suf-

ficiently percolated in the lower courts, yielding a va-

riety of approaches expressed in lengthy opinions. De-

lay will not yield further clarity, and the issue will be

argued comprehensively here. The Court should re-

solve the question now.

Il. The Costs Of Delay Are Significant Because

Religious Adherents And Not Courts Should

Decide Whether Conduct Coerced By Gov-

ernmental Mandates Conflicts With Their

Sincerely Held Religious Beliefs.

The Court should grant review to underscore the

proper standard for finding a substantial burden on

religious exercise under RFRA, and it is vitally im-

portant to do so given the effects of deviating from this

Court’s approach in Hobby Lobby.

A. The Improper Substantial-Burden Test

Applied Below Adjudicates The Merits

Of Adherents’ Religious Beliefs.

1. Religious faith and tolerance played a tre-

mendous role in the settlement of the colonies and the

founding of the United States. See, e.g., Town of

Greece v. Galloway, 134 S. Ct. 1811, 1823-24 (2014);

Hosanna-Tabor Evangelical Lutheran Church & Sch.

v. EEOC, 132 S. Ct. 694, 702-04 (2012). This country

has a long tradition of governing so as to meaningfully

protect the free exercise of religion. See, e.g., Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 523-24 (1993) (noting “the Nation’s essential

12

commitment to religious freedom”). By allowing reli-

gious adherents exceptions that are equal to other re-

ligious and secular exceptions from regulation, our

governments respect diverse faiths and govern by

making compromises that avoid unnecessary friction

between faith and law.

The Executive Branch, however, resists providing

the religious believers here the exemption already ac-

corded to their fellow believers in churches. Indeed,

the exemption that the Executive refuses to petition-

ers here is narrower than the exclusion of other em-

ployers for secular, administrative reasons. Yet the

Executive Branch contends that its decision is not

even subject to scrutiny under RFRA, a bipartisan act

of Congress following in our nation’s tradition of rea-

sonable compromise to respect religious freedom.‘

The Executive Branch’s method to avoid any scru-

tiny of its exemption denial is troubling. But despite

this Court’s instructions in Hobby Lobby, a number of

federal courts have now accepted the Executive's invi-

tation to judge for themselves the force of a religious

conviction. That approach intrudes upon the dignity

of adherents’ convictions about profound religious con-

cepts involving facilitation or complicity. It subjects

those beliefs to judicial review, as if courts are well

4 RFRA had broad bipartisan support throughout

the legislative process. See Douglas Laycock & Oliver

S. Thomas, Interpreting the Religious Freedom Resto-

ration Act, 73 Tex. L. Rev. 209, 210-11 n.9 (1994). The

House and Senate later approved RFRA in an almost

unanimous vote. 130 Cong. Rec. $14,471 (Oct. 27,

1993); 139 Cong. Rec. H2363 (May 11, 1993).

1d

situated to determine the substantiality of the reasons

of faith animating a believer’s desired exercise of reli-

gion, as opposed to the substantiality of the govern-

mental burden on that religious exercise. That is not

the inquiry required by RFRA, and it is contrary to

the spirit of religious tolerance that this country holds

dear.

2. In determining whether a RFRA substantial

burden exists, courts have not been permitted to as-

sess the force of a religious prohibition against partic-

ular conduct. That determination is for religion itself

to draw. Under RFRA’s substantial-burden analysis,

courts should instead address (1) whether the reli-

gious belief that one must act or refrain from acting in

a given way is sincere, and (2) whether the challenged

governmental action creates substantial coercion to

act contrary to that religious conviction.

As this Court explained in Hobby Lobby, federal

courts have no business resolving a “difficult and im-

portant question of religion and moral philosophy,

namely, the circumstances under which it is wrong for

a person to perform an act that is innocent in itself but

that has the effect of enabling or facilitating the com-

mission of [what the person believes to be] an immoral

act by another.” 134 S. Ct. at 2778. But that is what

the court of appeals’ analysis here does. See, e.g., Pet.

App. 13a n.33 (citing Geneva College for the proposi-

tion that “we must . . . objectively assess whether the

{adherents’ conduct] does, in fact, ... make them com-

plicit in the provision of contraceptive coverage”).

14

The court of appeals divided the substantial-bur-

den analysis into three parts: “(1) What is the adher-

ent’s religious exercise? (2) Does the challenged law

pressure him to modify that exercise? (3) Is the pen-

alty for noncompliance substantial?” Pet. App. 12a-

13a. It held that it would defer to the religious objector

on the first question, but not on the second question.

Pet. App. 13a. And the court’s approach to answering

that second question invites judicial review of reli-

gious belief and cannot be reconciled with Hobby

Lobby.

Significantly, the court acknowledged that peti-

tioners ascribe to religious principles that preclude

them from “provid[ing] or facilitat[ing] access to those

products” viewed as abortifacients. Pet. App. 9a. And

no one disputes the sincerity of petitioners’ religious

conviction that they may not comply with the contra-

ceptive mandate in either of its alternative forms. Id.

That general regulatory scheme requires employers

within its scope to “offer their employees a group

health plan,” Pet. App. 4a, which under agency regu-

lations means that a company retained to issue or ad-

minister that insurance must pay for drugs seen as

abortifacients. Pet. App. 5a. If an employer does not

comply with the executive agency’s requirement, the

employer “faces draconian penalties.” Id.

RFRA’s substantial-burden test does not require

adjudicating anything more. In concluding otherwise,

the court of appeals reasoned that it could decide for

itself whether the coerced conduct—satisfaction of the

contraceptive mandate using one of two methods—

“pressures” petitioners to “modify” what the court

viewed as core religious exercise. But petitioners have

15

made clear that they find either method of satisfying

the contraceptive mandate religiously objectionable.

Time and again, this Court has refused to ques-

tion the boundaries, importance, or validity of a per-

son’s religious beliefs. See, e.g., Emp’t Div. v. Smith,

494 U.S. 872, 887 (1990) (“Repeatedly and in many

different contexts, we have warned that courts must

not presume to determine the place of a particular be-

lief in a religion or the plausibility of a religious

claim.”); Hernandez v. Comm’, 490 U.S. 680, 699

(1989) (“It is not within the judicial ken to question

the centrality of particular beliefs or practices to a

faith, or the validity of particular litigants’ interpre-

tations of those creeds.”); Thomas v. Review Bd., 450

U.S. 707, 716 (1981) (“[I]t is not within the judicial

function and judicial competence to inquire whether

the petitioner or his fellow worker more correctly per-

ceived the commands of their common faith. Courts

are not arbiters of scriptural interpretation.”); Presby-

terian Church in U.S. v. Mary Elizabeth Blue Hull

Mem1 Presbyterian Church, 393 U.S. 440, 450 (1969)

(noting that courts lack authority to decide “the inter-

pretation of particular church doctrines and the im-

portance of those doctrines to the religion”). The Court

should confirm that principle here, holding that

RFRA’s substantial burden inquiry gives courts no li-

cense to go beyond finding a sincere religious objection

to conduct and substantial coercion to transgress it.

3. Even if courts could check for the reasonable-

ness of an adherent’s religious conviction about com-

plicity or facilitation, the court of appeals’ application

of that test in this case is problematic. The court effec-

tively second-guessed petitioners’ religious objections

16

by finding that coercion to take a particular course of

conduct does not pressure petitioners into violating

their religious beliefs. Pet. App. 12a-14a.

That course of conduct is the one that the Execu-

tive calls an “accommodation.” Its basic contours aru

important to understanding petitioners’ religious ob-

jections. That method of complying with the mandate

accomplishes a single end, but in different ways by

distinguishing between employers who hire an in-

surer to assume the risk of covering healthcare ex-

penses and employers who themselves assume that

risk while hiring an administrator to process claims.

As to the former: “If an employer with an insured plan

[objects to covering contraceptives under the plan it-

self], the insurer must . . . provide ‘separate payments’

for contraceptives for plan participants. . . . In addi-

tion, it must send a notice to participants... that...

the insurer provides separate payments.” Pet. App. 7a

(emphasis added). As to the latter: “If an employer

with a self-insured plan [objects to covering contracep-

tives under the plan itself] . . . the third-party admin-

istrator ... must either provide separate payments...

or arrange for an insurer or other entity to do so.” Pet.

App. 7a-8a (emphasis added).

Under either variant of this “accommodation”

method of compliance, the employer must execute a

form or notice, and that mandated document “shall be

an instrument under which the plan is operated, shall

be treated as a designation [by the religious employer]

of the third party administrator as the plan adminis-

trator .. . for [the products], and shall supersede any

earlier designation.” Pet. App. 8a; see Pet. App. 7a (le-

gal effect of form or notice for employer who hires an

17

insurer). Thus, execution of that form or notice is es-

sential to this “accommodation” method of compliance

with the mandate.

Even under this method of mandate compliance,

then, it is an employer’s mandated act of offering a

plan that generates an issuer’s or administrator’s le-

gal obligation to pay for the relevant drugs. As cor-

rectly described by the court of appeals, the insurer or

third-party administrator “must... provide. . . pay-

ments” only where the religious employer has a man-

dated “insured” plan or “self-insured” plan. Pet. App.

7a.

The court of appeals understood that the religious

organizations here perceive a religious obligation that

their offering of insurance not be used “as vehicles for

payments for contraceptives.” Pet. App. 21a. That ob-

ligation is founded on religious views about facilita-

tion or enablement of what is deemed objectionable

conduct, not on legal distinctions about whether the

payments are made directly through a plan or by pur-

suant to some other duty that still applies because the

employer hired a given issuer or administrator.

Nonetheless, the court of appeals concluded that

the religious employers’ anti-facilitation principle is

unpersuasive. Although that principle rests on reli-

gious judgments, the court offered only legal distinc-

tions immaterial to the reasons for that religious view.

Specifically, the court reasoned that “the regulations

prohibit” using the plans as a vehicle to facilitate the

mandated coverage. Id. That is so, the court deter-

mined, because “[t]he payments for contraceptives are

completely independent of the plans.” Pet. App. 22a;

18

see also Pet. App. 23a (coverage is provided “sepa-

rately from the plans”).

Even if that assertion could somehow undermine

the “justification” for petitioners’ views about complic-

ity, the characterization is belied by the court of ap-

peals’ own analysis. Absent the mandated insurance

plans, the religious employers would have no insur-

ance issuers or administrators upon whom their cov-

erage responsibilities would devolve through the op-

eration of the compelled self-certification. An issuer’s

or administrator’s coverage of the drugs exists only by

virtue of the plans that the religious employers are

mandated to put into place, on pain of large fines. It is

facilitation through that link to which the religious

employers object. Put another way, far from being

completely “independent” of or “separate[]” from the

drug payments, Pet. App. 22a, 23a, petitioners’ man-

dated conduct is a prerequisite for the payments.

Three basic points should resolve the burden issue:

e The religious employers’ sincere “religious

beliefs forbid them from .. . facilitating access

to contraceptives.” Pet. App. 23a.

e These religious employers are mandated to

provide insurance plans that are a prerequi-

site to petitioners’ contractors having to cover

the relevant drugs. Pet. App. 7a-8a (required

payment where there is an employer “with an

insured plan” or “with a self-insured plan”).

e Areligious employer that wants to follow the

dictates of conscience by not providing that

link faces “draconian penalties.” Pet. App. 5a.

19

That is enough to trigger Congress’s requirement that

such regulations receive scrutiny to ensure they ap-

propriately account for those sincere religious beliefs.

Of course, not all religious believers will conclude

that their conduct in directly causing payments for

drugs regarded as abortifacients makes the believers

complicit in those drugs’ consequences, or that use of

those drugs ends human life at all. But petitioners

here do hold those sincere religious beliefs, and they

do not rest on a legal mistake about the regulatory

scheme.

Petitioners are not raising legal claims objecting

to the government providing the relevant drugs di-

rectly to anyone. Instead, petitioners’ objection is to

the government’s insistence that they themselves play

a direct role in the process by virtue of offering their

(mandated) insurance plans and then, as employers

steered to the “accommodation” in the mandate, exe-

cute certain documentation that has operative effect.

See Slip op. 12, Priests for Life, No. 13-5368 (May 20,

2015) (Kavanaugh, J., dissenting from denial of reh’g

en banc) (“[I]f the form were meaningless, why would

the Government require it?”).

4. Hobby Lobby should thus resolve the sub-

stantial-burden inquiry. Indeed, the court of appeals

recognized that the violation in Hobby Lobby arose be-

cause large penalties “compelled the Hobby Lobby

plaintiffs to participate in providing contraceptives,

albeit in an indirect way.” Pet. App. 24a-25a. And the

court further acknowledged that the number of “links

in the causal chain” is of no import, “given that we ac-

20

cept an adherent’s judgment as to how much separa-

tion is enough.” Pet. App. 25a. But simply asserting

that an employer’s provision of insurance is “com-

pletely” independent (Pet. App. 22a) from the relevant

coverage obligations does not make it so. And courts

have no place judging whether the degree of attenua-

tion presents meaningful religious concerns for those

who must comply with the mandate.

The court of appeals’ finding of “independ[ence]}”

and “separat[ion]” cannot trump religious adherents’

beliefs regarding facilitation. Pet. App. 22a, 23a. Just

as a court must respect a religious adherent’s view

that manufacturing sheet metal is permissible while

manufacturing tank turrets makes him too complicit

in wrongdoing, Thomas, 450 U.S. at 715, the court of

appeals’ own view of how much separation is enough

is of no relevance here. Hobby Lobby, 134 S. Ct. at

2779.

Once the red herring of “complete” separation is

discarded, the burden analysis here is on all fours

with Hobby Lobby. This is not a case like Bowen v.

Roy, 476 U.S. 693, 704 (1986), involving internal gov-

ernment operations and the “mere denial of a govern-

mental benefit.” Nor is it a case like Lyng v. Northwest

Indian Cemetery Protective Association, 485 U.S. 439,

450 (1988), involving government road construction

that had “no tendency to coerce individuals into acting

contrary to their religious beliefs.” See id. at 449 (“In

neither [Roy nor Lyng] . . . would the affected individ-

uals be coerced by the Government’s actions into vio-

lating their religious beliefs”). Rather, this is a case

that involves the threat of large fines if religious em-

21

ployers do not comply with the Executive Branch’s de-

mand to act in a way that they understand to violate

their religious principles.

B. The Federal Executive’s Regulatory

Overreach Intrudes On Religious Liberty.

The Executive Branch’s contraceptive mandate is

the latest example of an attempted aggrandizement of

agency authority. See, e.g., Hosanna-Tabor, 132 S. Ct.

at 706 (unanimously rejecting EEOC’s suit against a

church for its decisions about employment of a com-

missioned minister, and dismissing EEOC’s “remark-

able view that the Religion Clauses have nothing to

say about a religious organization’s freedom to select

its own ministers”); Horne v. USDA, 135 S. Ct. 2419,

2427 (2015) (rejecting the Department of Agriculture’s

ability to seize raisins without any compensation, not-

ing that nothing in American legal history suggests

that personal property is any less protected against

physical appropriation than real property); Util. Air

Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014)

(rejecting EPA’s interpretation of the Clean Air Act to

authorize rewriting statutory thresholds for green-

house-gas emissions in part “because it would bring

about an enormous and transformative expansion in

EPA’s regulatory authority without clear congres-

sional authorization”).

The Executive’s refusal to exempt nonprofit reli-

gious organizations from the contraceptive mandate—

a mandate that already excludes churches, small em-

ployers, and employers with grandfathered plans—is

difficult to square with an attitude of respectful ac-

22

commodation of religious exercise. And the serious-

ness from petitioners’ perspective of the Executive’s

unyielding mandate bears restating: Petitioners sin-

cerely believe that compliance with this regulation is

religiously forbidden because it would render them

complicit in a process that in their view ends human

life. Nonetheless, the coercion to comply is “draco-

nian.” Pet. App. 5a. RFRA was meant to require at

least scrutiny of a religious adherent’s claim for an ex-

emption from such a regulation.

C. Exempting Religious Nonprofits Would

Not Be Difficult And Would Afford Them

Equal Treatment With Like Adherents.

Most churches, small employers, and employers

with grandfathered plans are not covered by the Ex-

ecutive’s contraceptive mandate. There is no reason to

think that the Executive could not in like manner ex-

empt religious nonprofits who identify themselves as

having the same religious objection that animates the

exemption for churches.

The fact that the Executive already allows so

many employers an actual exemption (not an “accom-

modation” that is merely an alternative form of man-

date compliance) is strong evidence that the govern-

ment can further its interests with means less restric-

tive of religious liberty. The Executive cannot suggest

that adherents’ religious convictions differ when they

meet on Sunday to determine insurance arrange-

ments for employees of their church and when they

meet on Monday to determine insurance arrange-

ments for employees of a church-affiliated charity or

23

school. In the former scenario, the Executive has de-

termined that methods other than the mandate will

meet its interest in promoting access to contraceptives

while respecting the religious employers’ beliefs. By

necessity, those same methods will achieve the gov-

ernment’s interest while respecting other religious

employers’ beliefs. Indeed, the Executive has not seri-

ously attempted to show that its alternative form of

compliance with the mandate—what it calls an “ac-

commodation”—is the method least restrictive of reli-

gious exercise for achieving a compelling governmen-

tal interest.

Rather than focusing on interests framed broadly,

RFRA demands “a more focused inquiry” on “applica-

tion of the challenged law to the person.” Hobby

Lobby, 134 S. Ct. at 2779 (internal quotation marks

omitted); see id. at 2779-80 (assuming the existence of

“compelling” interests framed broadly but requiring a

focus on the governmental interest in the mandate to

petitioners). That focus is on conscripting these reli-

gious employers into the government’s regulatory

scheme.

This cannot be the means least restrictive of reli-

gious exercise for achieving a compelling governmen-

tal interest given the existing carve-outs for numerous

employers, on grounds both secular and religious. Ra-

ther than coercing employers into violating their reli-

gious beliefs, the Executive can pursue the methods it

has already found acceptable with regard to employ-

ers not subject to the mandate. Those methods may be

providing coverage via the government’s health ex-

changes, providing a tax subsidy or refund, or directly

24

subsidizing the contraception at participating phar-

macies. See generally id. at 2781 n.37.

D. Religious Nonprofits Are A Vital Thread

In States’ Social Fabric And Should Be

Given Latitude To Operate In Accord-

ance With Their Animating Religious

Beliefs.

The Executive’s refusal to equally exclude all re-

ligious objectors from the contraceptive mandate be-

trays a lack of proper concern for federal law that pro-

tects religious liberty. Religious charities, schools, and

other nonprofits feel that burden heavily. See id. at

2785 (Kennedy, J., concurring) (“For those who choose

[to believe in a divine creator], free exercise is essen-

tial in preserving their own dignity and in striving for

a self-definition shaped by their religious precepts.”).

The host of religious objectors to the contraceptive

mandate include theological seminaries, schools and

colleges, orders of nuns, and charities caring for or-

phans. They have avowedly religious missions, and

their missions are part of what drives them to operate

with a motive not to profit, but to contribute to socie-

ties across the nation in their own unique ways. The

heavy religious burden that the Executive’s mandate

imposes on nonprofits faithfully serving their commu-

nities may well detract from the vigor with which they

serve and even their willingness to serve at all. The

amici States thus respectfully urge that the Court pay

close attention to the important interests of these vital

institutions.

25

CONCLUSION

The petition for a writ of certiorari should be

granted, and the judgment of the court of appeals

should be reversed.

Respectfully submitted.

MICHAEL DEWINE KEN PAXTON

Attorney General of Ohio Attorney General of Texas

LUTHER STRANGE CHARLES E. Roy

Attorney General of Alabama First Assistant Attorney

General

MARK BRNOVICH

Attorney General of Arizona SCOTT A. KELLER

Solicitor General

PAMELA JO BONDI Counsel of Record

Attorney General of Florida

J. CAMPBELL BARKER

SAMUEL S. OLENS Deputy Solicitor General

Attorney General of Georgia

MICHAEL P. MURPHY

DEREK SCHMIDT Assistant Solicitor General

Attorney General of Kansas

Office of the Attorney General

JAMES D. “BUDDY” CALDWELL P.O. Box 12548 (MC 059)

Attorney General of Louisiana Austin, Texas 78711-2548

scott.keller@

BILL SCHUETTE texasattorneygeneral.gov

Attorney General of Michigan (512) 936-1700

TImoTHY C. Fox Counsel for Amici Curiae

Attorney General of Montana

ADAM PAUL LAXALT

Attorney General of Nevada

26

E. SCOTT PRUITT

Attorney General of Oklahoma

ALAN WILSON

Attorney General of South Carolina

MARTY J. JACKLEY

Attorney General of South Dakota

SEAN D. REYES

Attorney General of Utah

PARKER DOUGLAS

Utah Federal Solicitor

PATRICK MORRISEY

Attorney General of West Virginia

27

ADDENDUM

“State RFRA” Provisions

Arizona: Ariz. Rev. Stat. § 41-1493.01

Arkansas: 2015 SB 975, enacted April 2, 2015

Connecticut: Conn. Gen. Stat. § 52-571b

Florida: Fla. Stat. § 761.01 et seq.

Idaho: Idaho Code § 73-402

Illinois: 775 Ill. Comp. Stat. § 35/1 et seq.

Indiana: 2015 SB 101, enacted March 26, 2015;

2015 SB 50, enacted April 2, 2015

Kansas: Kan. Stat. § 60-5301 et seq.

Kentucky: Ky. Rev. Stat. § 446.350

Louisiana: La. Rev. Stat. § 13:5231 et seq.

Mississippi: Miss. Code § 11-61-1

Missouri: Mo. Rev. Stat. § 1.302

New Mexico: N.M. Stat. § 28-22-1 et seq.

Oklahoma: Okla. Stat. tit. 51, § 251 et seq.

Pennsylvania: 71 Pa. Stat. § 2403

Rhode Island: R.I. Gen. Laws § 42-80.1-1 et seq.

South Carolina: S.C. Code § 1-32-10 et seq.

Tennessee: Tenn. Code § 4-1-407

Texas: Tex. Civ. Prac. & Rem. Code § 110.001 et

seq.

Virginia: Va. Code § 57-1 et seq.