Amicus Curiae Brief — Little Sisters of the Poor Home for the Aged v. Burwell, 136 S. Ct. 446 (2015) (No. 15-105)

No. 15-105

In the Supreme Court of the Anited States

LITTLE SISTERS OF THE POOR HOME FOR THE

AGED, DENVER, COLORADO, et al.,

Petitioners,

Vv.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, et ai.

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF FOR AMICI CURIAE DOMINICAN SISTERS

OF MARY, MOTHER OF THE EUCHARIST;

SISTERS OF LIFE; AND THE JUDICIAL EDUCATION

PROJECT IN SUPPORT OF THE PETITION FOR CERTIORARI]

Eileen J. O'Connor Carrie Severino

Counsel of Record Jonathan Keim

Robert S. Logan Judicial Education Projec

Pillsbury Winthrop Shaw 722 Twelfth Street, N.W.

Pittman LLP Fourth Floor

1200 Seventeenth Street, N.W. Washington, D.C. 20005

Washington, D.C. 20036

(202) 663-8380

eileen.oconnor@pillsburylaw.com

Counsel for Amici Curiae

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

TABLE OF CONTENTS

pee Bis PPT il

INTEREST OF AMICI CURIAE ............... 1

SUMMARY OF ARGUMENT .................. 3

es ee re 5

The Government Wrongly Relies on § 6033's

Return Filing Requirements to Govern

Application of the Contraceptive Mandate ..... 5

A. The HHS Mandate Wrongly Conditions the

Religious Accommodation on Return Filing

Status Under § 6033 of the Internal Revenue

SE vaxvesens bees bane ateeea eee 6

B. Section 6033 Provides No Guidance

Regarding the Treatment of Religious

Organizations; It Merely Prescribes Return

Filing Requirements for Tax-Exempt

IID, 4. 0 v6 0600 0 en sucseuneeuwon 7

C. Section 6033 Is Not a Classification of

ee 13

D. HHS Ignored the More Suitable Definition of

Religious Organizations Already Codified in

ME WE oo 3 So ceveves be cekeceesaeeeee 16

GUI i. cv cvscuieeheesbeusennaeeas 19

ii

TABLE OF AUTHORITIES

CASES

American Guidance Foundation, Inc. v.

United States,

490 F. Supp. 304 (D.D.C. 1980)............. 15

Burwell v. Hobby Lobby Stores, Inc.,

ree 2, 3,5, 17

Greater New Orleans Broadcasting Association, Inc., et

al. v. United States, et al.,

ek coe bu é-ile Ub e0.0ees 17

Hosanna-Tabor Evangelical Lutheran Church &

School v. EEOC,

EE ee 18

Lutheran Social Service of Minn. v. United States,

758 F.2d 1283 (8th Cir. 1985) .............. 15

McCulloch v. Maryland,

a a ey 19

Pollock v. Farmers’ Loan & Trust Co.,

157 U.S. 429 (1895), affd on rehearing,

EY nk as ou 60 b 6 © 6 6.6'0,0 00.0.0 8

Walz v. Tax Comm'n of the City of New York,

re esate pee es 6's 6 46:8 10

STATUTES AND REGULATIONS

ea an gas 68's 6.4 we'0d'e 3 17

ee 17

PS EEE co cccesceccccccesses 16, 17, 20

Se eI a vccopebccecienenenets 17

ee Es op dceccsceseecesvecneses 6

SR EEEED cc ccccerccncdcoesecses 17

SE. .<cugeeetensuseuae daades passim

Coverage of Certain Preventive Services Under the

Affordable Care Act, 78 Fed. Reg. 39,870 (July 2,

ee i a ed 5,18

Revenue Act of 1894, ch. 349, § 32,

I EOS ib Cee a 8

Revenue Act of 1909, ch. 6, § 38,

De te weeewes 8

Revenue Act of 1913, ch. 16,

Nee ce abba 8

Revenue Act of 1943, ch. 63, § 117,

Nee 8,9

Revenue Act of 1950, ch. 994,

ee peeenmusced 9

Tax Reform Act of 1969, tit. I, § 101,

REE SR eo 9,10

Treas. Reg. § 1.6033-6(b)(2)(iii), (iv) ............ 11

OTHER AUTHORITIES

Rev. Proc. 96-10, 1996-1 C.B.577 ............. 11

iv

Staff of the Joint Committee on Internal Revenue

Taxation, 9lst Cong., General Explanation

of the Tax Reform Act of 1969 (Comm. print

DGS Cdk Galas sr baade ees 10, 11, 12,14

1

INTEREST OF AMICI CURIAE’

The Dominican Sisters of Mary, Mother of the

Eucharist is a Roman Catholic community of women

religious based in Ann Arbor, Michigan. The

community was founded in the Dominican tradition to

spread the witness of religious life in accord with Saint

John Paul II’s vision for a New Evangelization. The

Dominican Sisters profess the vows of poverty, chastity

and obedience, along with a contemplative emphasis on

Eucharistic adoration and Marian devotion, for the

salvation of souls and the building of the Church

throughout the world. Women religious have been an

integral part of the history of Catholic education in the

United States. The Dominican Sisters seek to continue

the tradition of educating generations of young people

in their Faith and most of all, to bring youth into

deeper relationship with Christ through a faith

formation that includes liturgical, doctrinal, spiritual

and moral dimensions.

The Sisters of Life is a Roman Catholic community

of contemplative and active women religious. John

Cardinal O’Connor founded The Sisters of Life in 1991

for the protection and enhancement of the sacredness

of every human life. In addition to the traditional vows

of poverty, chastity, and obedience, The Sisters of Life

are consecrated under a special fourth vow to protect

" Counsel for all parties received at least 10 days notice of the

intent to file this brief. Counsel for all parties have submitted

blanket consent to the filing of amicus briefs in this case. No

counsel for a party authored this brief in whole or in part. No

person, other than amici curiae, their members, or their counsel,

made a monetary contribution that was intended to fund preparing

or submitting this brief.

2

and enhance the sacredness of human life. The Sisters

of Life community includes 80 Sisters from around the

world, who minister to pregnant women through

hospitality, practical assistance, spiritual retreats, and

healing. In addition, The Sisters of Life promote Roman

Catholic teaching about the value of life in churches

and communities through pro-life activities and a wide

variety of educational programs.

The Judicial Education Project (JEP) is dedicated to

strengthening liberty and justice through defending the

Constitution as envisioned by the Framers—a federal

government of defined and limited power, dedicated to

the rule of law, and supported by a fair and impartial

judiciary. JEP educates citizens about these

constitutional principles and focuses on issues such as

the judiciary’s role in our democracy, how judges

interpret the Constitution, and the impact of court

rulings on the nation. JEP’s educational efforts are

conducted through various outlets, including print,

broadcast, and internet media. In pursuit of these

constitutional principles, JEP has filed amicus curiae

briefs in numerous cases before the federal courts of

appeals and the Supreme Court, including Burwell v.

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

3

SUMMARY OF ARGUMENT

The Affordable Care Act (ACA) is one of the most

comprehensive and far-reaching legislative enactments

in history, and its effects will be felt by almost every

person and organization in the country for decades to

come. This case squarely presents issues regarding the

intersection of vast and intrusive government

mandates with profound issues of religious freedom

and government coercion that warrants the prompt

intervention of the highest court in the land. The

stakes could hardly be higher; the issues are ripe for

decision. The Tenth Circuit’s opinion is not only wrong

for all of the many reasons the petitioners have

demonstrated, but also represents a misreading and

misapplication of the Court’s most recent religious

precedent on nearly the same issue in Burwell v. Hobby

Lobby Stores, Inc., 134 S. Ct. 2751, 2775-76, 2779

(2014). The result can only be to confuse and

undermine the clear principles set out in that case for

the resolution of religious challenges to government

dictates.

Amici wish to highlight the arbitrary nature of the

decision by the Department of Health and Human

Services (HHS) to base the availability of religious

exemptions to the HHS contraceptive mandate (“HHS

Mandate” or “Mandate”) not on factors that go to an

employer's religious character, but on the way it is

treated in tax law. The HHS Mandate relies on several

categories set forth in Internal Revenue Code’ § 6033

* Unless otherwise specified, any reference to “Code” in this brief

refers to the Internal Revenue Code, which is found at Title 26 of

the United States Code.

4

to distinguish between its treatment of different

religious organizations. But the history and application

of § 6033 show that the classification was solely

intended to facilitate administration of the tax laws,

not to draw a line between religious institutions whose

free exercise was fully pre*tected and those who

received less consideration. In short, the availability of

an exemption to the Mandate should turn on an

organization’s claim to religious exercise rights, not its

tax filing obligations.

In fact, employment law has long managed to

reconcile its own demanding requirements with

religious exercise. Title VII of the Civil Rights Act of

1964 defines religious organizations who are exempt

from other employment law much more broadly than

does § 6033, and in a way that captures both the Little

Sisters and amici. That definition has served as the

model for other religious exemptions in employment

law and regulations, and gives evidence of a readily-

available alternative to the burdensome rule of the

HHS Mandate.

5

ARGUMENT

The Government Wrongly Relies on § 6033's

Return Filing Requirements to Govern

Application of the Contraceptive Mandate

When HHS proposed its Mandate, the regulation

triggered thousands of comments pointing out the

serious risks to religious freedom if the government

were to force employers opposed to contraception or

abortion to provide contraceptive or abortifacient drugs

or services. Coverage of Certain Preventive Services

Under the Affordable Care Act, 78 Fed. Reg. 39,870,

39,871 (July 2, 2013).

The initial version of the rule included no

exemptions for religious groups. After serious First

Amendment and Religious Freedom Restoration Act

(RFRA) concerns were raised, however, the government

settled on a tripartite division in which only houses of

worship and affiliated entities would be entirely

exempted from the mandate, while, in sharp contrast,

other religious organizations would receive a mere

“accommodation” to the rule, and all other employers

would be required to follow the rule regardless of

religious objection.°

* This Court held in Burwell v. Hobby Lobby Stores, Inc. that even

for-profit religious employers that do not fit within the not-for-

profit categories of § 6033 enjoy religious freedom protection under

RFRA and therefore must be granted accommodation for their

religious beliefs. 134 S. Ct. 2751, 2768-69 (2014).

6

A. The HHS Mandate Wrongly Conditions the

Religious Accommodation on Return Filing

Status Under § 6033 of the Internal

Revenue Code

The arbitrary division of religious institutions into

more- and less-protected castes is at the heart of this

case. Had HHS chosen to group the Little Sisters of the

Poor with churches and integrated auxiliaries that

have similar religious objections, the Sisters would

have received a full exemption from the HH®: Mandate

and would not now be faced with choosing between

violating a fundamental tenet of their religious faith or

facing crushing fines. Ultimately, however, HHS

officials made a momentous decision to distinguish

between groups of religious organizations, even those

with similar or identical religious beliefs and

employment practices, giving some a full exemption

from the rule but only allowing others a mere

“accommodation” that would force these other groups

to play an important role in imposing the HHS

Mandate. Moreover, the regulators distinguished

between the two classes by importing a distinction from

tax law that has no relation to the religious freedom

concerns that it purports to “accommodate.”

Exempted organizations include only “churches,

their integrated auxiliaries, and conventions or

associations of churches,” as well as “the exclusively

religious activities of any religious order,” as those

terms are used in clauses (i) and (iii) of § 6033(a)(3)(A)

of the Code, and organized and operated as nonprofit

entities. 45 C.F.R. § 147.13l(a) (citing IR.C.

§ 6033(aX3)(AXi) & (iii). Merely because they fall into

a different category for tax filing purposes, other

7

religious organizations, including the Little Sisters, are

offered an “accommodation” which does not address

their religious objections to cooperating in providing

contraceptives and abortifacients to their employees.

While that distinction between different categories of

religious organization may make sense in the tax

context, it is neither designed nor appropriate for

allocating free exercise burdens on religious employers.

B. Section 6033 Provides No Guidance

Regarding the Treatment of Religious

Organizations; It Merely Prescribes Return

Filing Requirements for Tax-Exempt

Organizations

Throughout the long history of taxation in the

United States, the tax-writing committees of Congress

have generally tried to avoid entangling the Internal

Revenue Service in First Amendment religious

considerations.

With the HHS contraceptive mandate, by contrast,

an administrative agency of the government has chosen

to demand that the Little Sisters provide their female

employees and dependents (including minor

dependents) contraceptives and abortifacients or

authorize someone else to do so, while entirely

exempting other religious organizations. It bases this

crucial distinction on an entirely irrelevant fact:

Section 6033 requires the Little Sisters to file with the

Internal Revenue Service an annual return of income

and expenses and other information relevant to its tax

exemption but does not require churches and their

affiliates to do so. As the following history makes clear,

however, § 6033 provides no logical or legally defensible

basis for distinguishing among religious institutions to

8

deterniine the degree of protection their religious

freedom merits. The history shows, rather, that the

provision is aimed solely at collecting information to

enable the Internal Revenue Service to confirm that

tax-exempt organizations are operating in accordance

with the terms of their tax-exempt status.

Generally speaking, every exempt organization is

required by § 6033(a)(1) of the Code to file an annual

return of income and expenses and other information

the Internal Revenue Service needs to determine

whether the organization continues to qualify for the

tax exemption and meets other tax-related

requirements. Section 6033(a\(3)(A) specifies which

organizations are statutorily exempt from that general

rule.

When Congress first imposed an income tax on

corporate entities, it specifically exempted from all

taxation — and filing requirements — all “corporations,

companies, or associations organized and conducted

solely for charitable, religious, or educational

purposes|.]” Revenue Act of 1894, ch. 349, § 32, 28 Stat.

509, 556 (declared unconstitutional in Pollock v.

Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), affd

on rehearing, 158 U.S. 601 (1895)); see also Revenue

Act of 1909, ch. 6, § 38, 36 Stat. 11, 113 (1909). After

the Sixteenth Amendment was ratified, the Revenue

Act of 1913 preserved the exemption. Revenue Act of

1913, ch. 16, 38 Stat. 114, 172 (1913).

It was not until the 1943 Revenue Act that tax-

exempt organizations were required to file any sort of

information returns, and even then the requirement

did not apply to “religious organization[s]” and

“organization|(s] . . . operated, supervised, or controlled

9

by or in connection with a religious organization.”

Revenue Act of 1943, ch. 63, § 117, 58 Stat. 21, 37

(1944).

Over time, it became clear that some tax-exempt

organizations were engaging in income-producing

activity unrelated to their exempt purpose, and thus

competing at an unfair advantage against taxable

entities. So in 1950, Congress added the unrelated

business income tax (UBIT) provisions to the Code,

requiring otherwise tax-exempt organizations,

including religious institutions, to file income tax

returns and pay taxes on their unrelated business

taxable income. Revenue Act of 1950, ch. 994, 64 Stat.

906, 948 (1950). These UBIT returns were entirely

separate from the information returns filed to report on

nontaxable exempt operations. “Churches” were

excluded from the UBIT return requirement, but the

statute did not define “church.” Thus, although non-

church religious organizations now had to file UBIT

returns, the broad category of religious organizations

as a whole remained exempt from filing information

returns.

In 1969, in response to the increasing complexity

and sophistication of tax-exempt entities and actual or

perceived abuses of their tax status, the Tax Reform

Act of 1969 (the “1969 Act”) made major changes to the

taxation of otherwise tax-exempt organizations. Tax

Reform Act of 1969, tit. I, § 101, 83 Stat. 487, 494-96

(1969). Among them was a narrowing of the

information return filing exemption for religious

organizations. Now it applied only to “churches, their

integrated auxiliaries, and conventions or associations

10

of churches” and “the exclusively religious activities of

any religious order.” See id. at 520.

At the same time, though, Congress tried to avoid

giving the Internal Revenue Service power to interfere

with the free exercise of religion. As the Supreme Court

stated the following year,

For so long as federal income taxes have had any

potential impact on churches—over 75 years—

religious organizations have been expressly

exempt from the tax. ... Few concepts are more

deeply embedded in the fabric of our national life

beginning with pre-revolutionary colonial times,

than for the government to exercise at the very

least this kind of benevolent neutrality toward

churches and religious exercise generally, so

long as none was favored over others and none

suffered interference.

Walz v. Tax Comm’n of the City of New York, 397 U.S.

664, 676 (1970).

The General Explanation of the Tax Reform Act of

1969 (also known as the 1969 Blue Book) noted the new

legislation’s narrow information return exemption for

church-related organizations, observing that “fi]n

addition to these three categories, the Treasury

Department may exempt other type of organizations

from the filing requirements if it concludes that the

information is not of significant value.” Staff of the

Joint Committee on Internal Revenue Taxation, 91st

* These statutory criteria remain today in clauses (i) and (ii) of

§ 6033(aX3)(A) and constitute the sole basis for exemption from the

HHS Mandate.

11

Cong., General Explanation of the Tax Reform Act of

1969 53 (Comm. print 1970) (“1969 Blue Book”),

available at https://www.jct.gov/publications.html?func

=startdown&id=2406. This discretionary authority of

the Treasury was codified in § 6033(a)(3)(B), which

continues to provide that the Treasury Secretary may

relieve any organization from filing an information

return “where he determines that such filing is not

necessary to the efficient administration of the internal

revenue laws.”

In fact, pursuant to this discretionary authority, the

Treasury has exempted certain other non-church

religious organizations from information return filing

because it determined the information was not

necessary for administration of the tax laws.° In just

one of the anomalies created by HHS’s restrictive

criteria for the HHS Mandate exemption, these

religious organizations are just as legally exempt from

information return filing as church-related

organizations, but yet are not eligible for an exemption

from the HHS Mandate solely because their filing

° These organizations include, in general terms, (i) mission

societies sponsored by or affiliated with a church and primarily

acting in or towards foreign countries, (ii) below-college-level

educational institutions affiliated with a church or operated by a

religious order, and (iii) organizations operated, supervised, or

controlled by church-related organizations and that are engaged

exclusively in financing, funding, or managing funds for such

organizations, or that maintain retirement insurance plans

primarily for such organizations where more than half of the

covered individuals are directly employed by those organizations,

or more than 50 percent of the assets are contributed by, or held

for the benefit of, employees of those organizations. See Treas. Reg.

§ 1.6033-6(b\ 2iii), (iv); Rev. Proc. 96-10, 1996-1 C.3. 577.

12

exemption is discretionary under § 6033(a)(3)(B) rather

than statutory under § 6033(a)(3)A)i) and (iii) as

required by the HHS Mandate exemption.

Even the extensive 1969 Act statutory changes,

however, were not uniform in their treatment of

church-related organizations and other religious

organizations, as they varied based upon Congressional

views on sound tax policy and the Department of

Treasury's requirements for information. Accordingly,

although church-related organizations remained

exempt from filing information returns under the

narrower exemptions in § 6033(a), Congress revoked

the general religious organization exemption from

filing UBIT returns for all religious organizations, even

church-related organizations. Congress took this step

because it believed that it was inappropriate even for

church-related organizations to be exempt from UBIT

when

. exempt organizations not subject to the

unrelated business income tax—such as

churches, social clubs, fraternal beneficiary

societies, etc.—began to engage in substantial

commercial activity. For example, numerous

business activities of churches were brought to

the attention of the Congress. Some churches

are engaged in operating publishing houses,

hotels, factories, radio and TV stations, parking

lots, newspapers, bakeries, restaurants, etc.

1969 Blue Book 66-67. The development of

§ 6033(a)(3)’s exemptions from otherwise applicable

information filing requirements, especially in context

with the imposition of UBIT filing requirements

regardless of the type of religious organization, makes

13

clear that the sole purpose of return filing is to provide

the Internal Revenue Service with the information it

needs to administer and enforce the tax laws, nothing

more.

C. Section 6033 Is Not a Classification of

Religious Rights

The government uses the distinctions drawn in

§ 6033(a)(3)(A) to distinguish between religious groups

who are entirely exempt from the HHS mandate and

those whom it will only “accommodate.” But those

provisions in no way address the religious freedoms at

the heart of which groups should not be subject to the

HHS Mandate.

Section 6033(a\3)(A) provides exceptions to the

general rule of § 6033(a)(1), which requires tax-exempt

organizations to file an annual information return. The

filing of this return has nothing to do with religious

exercise and everything to do with administration of

the tax laws.

The general rule for the tax filing requirements of

tax-exempt organizations makes that purpose explicit:

. . every organization exempt from taxation

under § 501(a) shall file an annual return,

stating specifically the items of gross income,

receipts, and disbursements, and such other

information for the purpose of carrying out the

internal revenue laws as the Secretary may by

forms or regulations prescribe, and shall keep

such records, render under oath such

statements, make such other returns, and

14

comply with such rules and regulations as the

Secretary may from time to time prescribe ... .

I.R.C. § 6033(a)(1) (emphasis added).

The 1969 Blue Book emphasized the information

reporting purpose of § 6033:

The primary purpose of these requirements was

to provide the Internal Revenue Service with the

information needed to enforce the tax laws. The

Congress concluded that experience of the past

two decades indicated that more information is

needed on a more current basis from more

organizations and that this information should

be made more readily available to the public,

including State officials.

1969 Blue Book 52, 53. Nothing in the Committee

Report suggests that a religious organization’s

obligation to file an annual information return with the

Internal Revenue Service has any purpose other than

facilitating administration of the tax laws.

In crafting the Mandate, HHS identified religious

considerations in its own explanation for the HHS

Mandate exemption. It noted that forcing religious

employers to cover contraceptive services implicated

religious freedoms, but then made the unsupported

assertion that the relationship of a religious employer

with its employees is unique for houses of worship and

their affiliates as defined under the tax code.

But whether an organization is a “church” for

purposes of § 6033 and other areas of the tax code, ora

religious organization like Little Sisters and amici, has

only to do with its structure and its religious activities,

15

not the relative religiousness of the organization or its

rank-and-file employees.* Furthermore, after a 10-year

fight and losses in litigation, the Treasury finally

abandoned the position that the activities of an

“integrated auxiliary” of a church, one of the entities

exempted under the HHS Mandate, must be

“exclusively religious.” See, eg., Lutheran Social

Service of Minn. v. United States, 758 F.2d 1283 (8th

Cir. 1985) (striking down “exclusively religious”

requirement). Indeed, such church auxiliaries often

have no purpose relating to religious teaching or

ceremonies, and may be engaged in the same types of

community service activities and have the same types

of religiously-motivated members as the Little Sisters,

yet such auxiliaries qualify under § 6033(a)(3)(A)(i) and

the Little Sisters do not. In the face of these

similarities, and despite the fact that religious

considerations were the reason for the HHS Mandate

exemption in the first place, HHS has stubbornly

continued to base availability of the exemption solely

on an organization’s tax filing obligations.

® See, e.g., American Guidance Foundation, Inc. v. United States,

490 F. Supp. 304, 306 (D.D.C. 1980) (requiring “associational”

activities that mean “[{a]t a minimum, a church includes a body of

believers or communicants that assembles regularly in order to

worship.”).

16

D. HHS Ignored the More Suitable Definition

of Religious Organizations Already

Codified in Title VII

The Little Sisters are subject to the provisions of the

Affordable Care Act not because they are taxpayers,

but because they are employers. And federal law

already provides guidance on the proper application of

employment laws to religious employers in Title VII of

the Civil Rights Act of 1964. Long before the ACA was

passed, federal employment law had already dealt with

the question of how to accommodate religious

organizations in the context of its employment

mandates, and did so in way that was much more

respectful of the scope of free religious exercise and the

range of religious devotion in the United States.

Recognizing the unique attributes of religious

devotion and expression, Title VII of the Civil Rights

Act of 1964 specifically exempts religious employers

from antidiscrimination laws that apply to secular

employers. These provisions allow religious employers

to hire only people who share their religious beliefs

without being subject to the penalties that apply to

non-religious employers. 42 U.S.C. § 2000e-1. The law

defines broadly which religious employers fit within

this exemption:

, a religious corporation, association,

educational institution, or society with respect to

the employment of individuals of a particular

religion to perform work connected with the

carrying on by such corporation, association,

17

educational institution, or society of its

activities.

Id. This exemption would clearly cover both Little

Sisters of the Poor.

Indeed, other employment laws also track Title

VII's definitions of religious organizations. The

Americans with Disabilities Act, for example, similarly

protects the ability of “a religious corporation,

association, educational institution, or society” to hire

employees who share their beliefs, 42 U.S.C.

§ 12113(d)(1), as do regulations of federal contractors

and subcontractors, 48 C.F.R. § 22.807(b)(7), 41 C.F.R.

§ 60-1.5(a)(5), and recipients of Small Business

Association assistance. 13 C.F.R. § 113.3-1(h).

Viewed in light of these other exemptions, the HHS

Mandate’s list of religious classifications is absurd.

Religious employers like the Little Sisters of the Poor

are expressly permitted by Title VII to hire only people

who do not want contraceptives, but government

penalties can drive them out of existence for failing to

provide them.’

' The Court has said in the context of a less sensitive First Amendment

freedom, the protection of commercial speech, that “the flaw in the

Government’s case is more fundamental: The operation of [the statute]

and its attendant regulatory regime is so pierced by exemptions and

inconsistencies that the Government cannot hope to exonerate it.”

Greater New Orleans Broadcasting Association, Inc., et al. v. United

States, et al., 527 U.S. 173, 190 (1999). In that case, one law banned

advertising of casinos, and another one encouraged tribal casino

gambling. The resulting havoc was considerably less troubling than that

wreaked by the HHS mandate. As the Court noted in Hobby Lobby, the

ACA itself, and the contraceptive mandate in particular, is riddled with

exceptions and exemptions. 134 S. Ct. 2751, 2763-64 (2014).

18

Just as incomprehensible is HHS’ explanation for

limiting exemptions to houses of worship and related

auxiliaries under § 6033. In its responses to more than

400,000 comments on proposed regulations governing

coverage of certain preventive services, HHS opined:

Houses of worship and their integrated

auxiliaries that object to contraceptive coverage

on religious grounds are more likely than other

employers to employ people of the same faith

who share the same objection, and who would

therefore be less likely than other people to use

contraceptive services even if such services were

covered under their plan.

78 Fed. Reg. 39,870, 39,874.

But if the likelihood that most employees share the

organization’s religious beliefs was the reason for

exempting an organization from the HHS Mandate, it

makes no sense for those exemptions to track tax law

— and specifically the language dealing with filing

returns — rather than the very employment laws that

deal with hiring people of shared faith in the first

place.

It is unsurprising that employment law would

include broad religious exemptions. Employment law

has the potential to interfere directly with these

institutions’ religious exercise by placing the

government between religious institutions and the

employees who carry out their mission. See Hosanna-

Tabor Evangelical Lutheran Church & School v.

EEOC, 132 S. Ct. 694, 705-07 (2012) (applying

employment discrimination law to churches “interferes

with the internal governance of the church, depriving

19

the church of control over the selection of those who

will personify its beliefs.”).

Ironically, taxing religious organizations directly

and providing free contraceptives from a general fund

could have been less intrusive (at least in principle)

than regulating religious entities’ employment

decisions. Mindful that “the power to tax involves the

power to destroy,” McCulloch v. Maryland, 17 U.S. 316,

431 (1819) (Marshall, J.), tax laws are less burdensome

to religious exercise than the HHS Mandate. The tax

laws do not require a religious organization to provide

or assist in providing any benefits, or to engage in any

activities, that it doesn’t already. HHS’ heavy-handed

mandate, by contrast, insists the Little Sisters

affirmatively act in contravention of their religious

principles.

CONCLUSION

The HHS Mandate threatens the Little Sisters with

fines that are more than just a substantial burden;

they are a death sentence. Yet the only basis that HHS

provides for treating the Little Sisters as a second-class

religious institution is its classification for purposes of

a tax reporting requirement having nothing to do with

the relationship between employers and _ their

employees and certainly nothing to with the Mandate.

The Little Sisters and other religious orders devote

their entire financial resources to the accomplishment

of their purpose — in the case of the Little Sisters, care

of the elderly; in the case of Sisters of Life, care of

pregnant women and their newborns; in the case of the

Dominican Sisters, education of children — and to the

food, clothing and shelter of the religious women

20

engaged in the mission. The government’s failure to

acknowledge and respect the Little Sisters’ and

similarly situated religious orders’ adherence to a

fundamental teaching of the faith to which they have

dedicated their lives would deprive American

communities of their valuable contributions to society.

Even if HHS was within its authority to require

most employers to provide contraceptive coverage to

female employees, it selected and applied irrelevant

tax-law criteria in determining which employers are

entitled to a religious exemption. Rather than pull

irrelevant classifications from thin air, HHS should

have adopted the relevant criteria already expressed in

Title VII.

The Court should grant the petition.

Respectfully submitted,

Eileen J. O’Connor

Counsel of Record

Robert S. Logan

Pillsbury Winthrop Shaw Pittman LLP

1200 Seventeenth Street, N.W.

Washington, D.C. 20036

(202) 663-8380

eileen.oconnor@pillsburylaw.com

Carrie Severino

Jonathan Keim

Judicial Education Project

722 Twelfth Street, N.W. Fourth Floor

Washington, D.C. 20005

Counsel for Amici Curiae

August 24, 2015