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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0597%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

No. 15-105

IN THE
Supreme Court of the United States

LITTLE SISTERS OF THE POOR HOME FOR THE AGED,
DENVER COLORADO, ET AL.,

Petitioners,
v.

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 Tenth Circuit

Brief of the Southern Baptist Theological
Seminary, the Ethics & Religious Liberty
Commission, the international Mission Board,
and Dr. R. Albert Mohler, Jr. as amici curiae in

support of Petitioners
MILES E. COLEMAN DEREK GAUBATZ
Counsel of Record Int'l Mission Board
JAY T. THOMPSON 3806 Monument Avenue
Nelson Mullins Riley & Richmond, VA 23230
Scarborough, LLP (800) 219-1575
1320 Main Street
Columbia, SC 29201
miles.coleman@nelsonm ullins.com

(803) 799-2000
Counsel for Amici Curiae
— 'e' ä. '''. IT a —:.:.;..;: .. . —

TABLE OF CONTENTS
Page
TABLE OF AUTHORMTIES. ili
INTEREST OF AMICI CURIAE.........ccccceccscecceceeceescececeveee 1
SUMMARY OF ARGUMENT 3
q—’—lk . .. 4
I. Christian doctrine and Southern Baptist
belief require that faith govern every
aspect of a Christian’s life 4
II. Scripture and Southern Baptist doctrine
teach that life begins at conception and
therefore abortion is the taking of
innocent human life and is a grave moral
188 — —-—-—-— — 10
III. Christian doctrine and Southern Baptist
teaching state it is a sin for a Christian
to enable or aid another in doing what
the Christian believes to be wrong.............. 16
IV. Requiring Christians to choose between
violating the Government's regulations
or violating their sincerely held religious
beliefs substantially burdens their
exercise religion. . 21
Z 25

TABLE OF AUTHORITIES
Page
Cases
Attorney Gen. v. Desilets,
636 N.E.2d 233 (Mass. 1994) 19
Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520 (1993) ꝗ . 23

Employment Div., Dept. of Human
Resources v. Smith, 494 U.S. 872 (1990) ............. 22

Gilardi v. U.S. Dept. of Health and
Human Servs., 733 F.3d 1208 (D.C.
iii 18

Hanna v. Secretary of the Army,
. iccertcctinctncscccscnscciescnistoets 17

Hobby Lobby Stores, Inc. v. Sebelius,
723 F.3d 1114 (10th Cir. 2013 18-19, 23

Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. EEOC, 132 S. Ct.

r SRR ance e eR 4
Korte v. Sebelius,

735 F.3d 664 (7th Cir. 2013) . . ...e. 6
O’Bryan v. Bureau of Prisons,

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

iv

Sherbert v. Verner,

I lel 22, 24
Spencer v. World Vision, Inc.,

. . 4
State hy Cooper v. French,

460 N. W. ad 2 (Minn. 1990) . 17
Thomas v. Anchorage Human Rights

Comm'n, 165 F.3d 692 (9th Cir. 1999).................. 8
Thomas v. Review Bd. of Indiana Empl.

Sec. Div., 450 U.S. 707 (1981).................. 21, 2324
United States v. Lee,

TL NRE Sea Ae ST ae 23
Wisconsin v. Yoder,

,, ... » 22
Rules
rr eee 23
78 Fed. Reg. 39870 (July 2, 2013) .. 23
Statutes
r ˙ .. —F! ˙—m,Ä. —⏑—]ꝛ“Ä OTE me 17
| 8 / eRe ee NET 17

. 20

er 20
. a icennsiiincnnnisestenenincncmennsocmeniie 21
. 22
canara 16
Other Authorities

Aaron Schwabach, Thomas Jefferson,
Slavery, and Slaves, 33 T. Jefferson

e .. 7
The Baptist Faith & Message 2000,

EERE ↄ ä T ͤ— 4
Carl F. H. Henry, Has Democracy Had

, . ene 15
Carl F. H. Henry, Twilight of a Great

, . EAA 15
ERL C Letter to Congress on No

Taxpayer Funding for Abortion Act,

e . .. 15

Isaac Watts, The Poetical Works of Isaac
e 4

John Calvin, Commentaries on the Last
Four Books of Moses, Vol. 3 (tr.
re 14

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

John Leland, The Right of Conscience

— (

Justo L Gonzalez, The Story of

Christianity, Vol. 1 (1984) .

The Large Catechism by Martin Luther
(1529), reprinted in Triglot Concordia:
The Symbolical Books of the Ev.

Lutheran Church (1921)

Mark L. Rienzi, The Constitutional Right

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

Mark S. Scarberry, John Leland and
James Madison: Religious Influence on
the Ratification of the Constitution
and on the Proposal of the Bill of
Rights, 113 Penn St. L. Rev. 733

1 —ůů —ů——ů————

Martin Luther, Luthers Works, Vol. 4:
Lectures on Genesis Chapters 21-25

(tr. Jaroslav Pelikan, 1999)

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

Career of the Reformer ITT (1972)

R. Albert Mohler, Jr., “Abortion is as
American as Apple Pie The

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

R. Albert Mohler, Jr., 7 Feel Super Great

About Having an Abortion — Ihe

Culture of Death Goes Viral lll 15
R. Albert Mohler, Jr., So What if

Abortion Ends a Life? Rare Candor

from the Culture of Dat. 15
Religious Freedom Restoration Ace 2, 20-22
Thomas Vincent, An Explanation of the

Assembly’s Shorter Catechism (18060) 17
Scriptures
e 5
2 iicctnicinnsinininsicniiemnieniesinindsinmiaiaaaniie 15
— 2 —————ů ů 5
/ / ·⸗·⸗·⸗·⸗ r eee 5
r ...]... 6, 7
e . X 5
e ] ·— 11
e ⸗·⸗·⸗ r t e eee eee 10
1 ——————„ßꝗç. i 8

r ̃ —I—3 ee ND 6

ss éůQV. -x 10
D ä ääZd¼d¼ZdZdxxd—̃— 10
/ 1 20
e 16
e . 9 8
, .... 1
r xTxT—cnbc—bb c 8
Z— 11
r , ¼“ (dd 10
r ¾ↄ5¼F—̃— 10
...... 10
1111111 3
r 6
S r 20

1
INTEREST OF AMICI CURIAE!

The Southern Baptist Theological Seminary
(“SBTS’”) is the oldest of the six seminaries affiliated
with the Southern Baptist Convention (“SBC”) and is
one of the world’s largest theological seminaries,
with a f ll-time enrollment of over 2,000 students.
Located in Louisville, Kentucky, SBTS currently
enrolls students from all 50 states and 41 countries.
SBTS exists to serve the churches of the SBC by
training, educating, and preparing ministers of the
gospel for faithful service. From its founding in 1859
until the present day, the SBTS charter asserts that
“God alone is Lord of the conscience; and He hath left
it free from the doctrines and commandments of
men, which are in anything contrary to His word, or
not contained in it.” SBTS believes that the
government mandate at issue in this petition
infringes on that venerable tradition of religious
liberty and freedom of conscience.

The Ethics and Religious Liberty
Commission (“ERLC”) is an entity of the SBC, the
nation’s largest Protestant denomination, with over
46,000 autonomous churches and nearly 16 million
members. The ERLC is dedicated to engaging the
culture with the gospel of Jesus Christ and speaking
to issues in the public square for the protection of
religiou 3 liberty and human flourishing. The ERLC is
charged by the SBC with addressing public policy
affecting such issues as freedom of speech, religious

1 The parties’ counsel were timely notified of and consented to
the filing of this brief. Neither a party nor its counsel authored
this brief in whole or in part. No person or entity, other than
the amici curiae or their counsel made a monetary contribution
to the preparation and submission of this brief.

2

freedom, marriage and family, and the sanctity of
human life. Religious freedom is an indispensable,
bedrock value for Southern Baptists. The ERLC fears
the government mandate at issue threatens the
Constitution s guarantee of freedom from
governmental interference in matters of faith, a
crucial protection upon which SBC members and
adherents of other faiths depend as they follow the
dictates of their conscience in the practice of their
faith.

The International Mission Board (“IMB”) is
an entity of the SBC dedicated to taking the gospel of
Jesus Christ to all nations and peoples in fulfillment
of the Great Commission found in Matthew 28:18-20.
To achieve its vision of seeing a multitude of every
people, tribe, and tongue from around the world come
to worship and exalt Jesus Christ as Lord and
Savior, the IMB employs more than 5,000 Christian
workers.

Dr. R. Albert Mohler, Jr. is the President of
SBTS, the flagship school of the SBC and one of the
largest seminaries in the world. Dr. Mohler has been
recognized as one of the leading intellectuals among
American evangelicals, has been quoted in the
nation’s leading newspapers, and has appeared on
numerous news and commentary television
broadcasts. He has authored several books and is the
editor-in-chief of The Southern Baptist Journal of

Theology.

3
SUMMARY OF ARGUMENT

Requiring Christians—including the Southern
Baptist entities among the Petitioners—to choose
between violating the Government's regulations or
violating their sincerely held religious beliefs
substantially burdens their exercise of religion in
violation of the Religious Freedom Restoration Act
and the First Amendment to the United States
Constitution. A fundamental aspect of Christian
doctrine is its requirement that faith must govern
every aspect of a Christian’s life. As a matter of

scriptural command, conscience, doctrinal tradition,
and Southern Baptist teaching, the exercise of the
Christian religion must guide and determine a
Christian’s decisions, words, and deeds in every facet
of life, including seemingly “secular” matters like the
administration of insurance and the provision of
certain drugs and devices.

Because of the holistic nature of the Christian
faith, Baptists throughout American history have
discerned a spiritual obligation to interact with and
influence the culture outside the church doors. This
has historically included providing for and protecting
the oppressed or defenseless, including the protection
of innocent and unborn human life. Southern
Baptists have spoken clearly in opposition to
abortion and in support of their belief that life begins
at conception, beliefs that are grounded in the words
of Holy Scripture.

In light of the broad scope of the Christian faith
and the Southern Baptist theological opposition to
abortion, the Petitioners cannot, as a matter of
doctrine and conscience, distribute abortion-inducing
drugs and devices directly or indirectly by

4

authorizing, obligating, or incentivizing a third
party—and particularly their own third-party
administrators—to use Petitioners’ health plans to
provide such drugs and devices to others. Scripture
and Southern Baptist belief prohibit not only direct
and personal wrongdoing, but also complicity in
doing what the Christian believes to be sin. Christian
doctrine teaches that Christians who knowingly aid
or abet another's wrongdoing have themselves done
wrong. Accordingly, a statute or regulation requiring
a Southern Baptist individual or ministry to be
complicit in conduct the Christian faith teaches is
morally wrong forces that person or ministry into an
impossible choice—to either violate conscience or
violate the law—and imposes a substantial burden
on the exercise of religion.

ARGUMENT

I. Christian doctrine and Southern Baptist
belief require that faith govern every aspect
of a Christian’s life.

A fundamental aspect of Christianity is its
requirement that the Christian faith govern all
aspects of the believer’s life. This teaching is drawn
directly from the Holy Scripture and stems from the
Christian belief that God’s sovereignty extends over
every area of human endeavor. See, e.g., Psalm 24:1
(“The earth is the Lord’s and the fullness thereof, the
world and those who dwell therein.”).? In the words
of the English theologian and poet Isaac Watts, God’s
“love, so amazing, so divine, demands my life, my

2 All quotations of Scripture herein are taken from the Holy
Bible, English Standard Version.

5

soul, my all.” Isaac Watts, The Poetical Works of
Isaac Watts, Vol. IV 173 (1782).

Accordingly, Christianity has never limited its
reach merely to matters of theology and ceremonial
observance. See, e.g., Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694,
713 (2012) (Alito, J., concurring) (agreeing with the
Court’s unanimous opinion that the job duties of a
Lutheran minister engaged in education “reflected a
role in conveying the Church’s message and carrying
out its mission” and observing that “[rjeligious
teachings cover the gamut from moral conduct to
metaphysical truth.“; Spencer u. World Vision, Inc.,
633 F.3d 723 (9th Cir. 2011) (per curiam) (finding a
Christian humanitarian organization “working with
children, families and their communities worldwide
to reach their full potential by tackling the causes of
poverty and injustice” was a religious activity); see
also The Baptist Faith & Message 2000, Article XIII
(“God is the source of all blessings, temporal and
spiritual; all that we have and are we owe to Him....
[Christians] are therefore under obligation to serve
Him with their time, talents, and material
possessions; and should recognize all these as
entrusted to them to use for the glory of God and for
helping others.”), available at http://www.sbc.net/
bfm2000/bfm2000.asp (last visited August 7, 2015).°

Rather, Christianity teaches that one’s faith
influences even those areas of life that appear
superficially unrelated to worship, prayer, or
theology. See, e.g., Colossians 3:17 (‘And whatever

The Baptist Faith and Message is the statement of faith of the
SBC and summarizes Southern Baptist beliefs.

6

you do, in word or deed, do everything in the name of
the Lord Jesus.”). Indeed, Christianity teaches there
is spiritual significance in every part of life, including
seemingly mundane acts like eating, drinking, and
working. 1 Corinthians 10:31 (“So whether you eat or
drink or whatever you do, do all for the glory of
God.“); Colossians 3:23-24 (Whatever you do, work
heartily, as to the Lord.”); Ecclesiastes 3:1-13 (noting
“[flor everything there is a season, and a time for
every matter under heaven” and that “everyone
should eat and drink and take pleasure in all his
toil—this is God's gift to man”). These holistic
demands of Christianity require consistency in
familial, business, and social relations and are not
limited to sacerdotal, ecclesial, or ritual matters.

This integration of a Christian’s entire life in
relation to God is an outgrowth of the Christian
gospel, which provides that God, completely
righteous and without sin, by His infinite grace,
justifies man who is by nature unrighteous and
sinful. This cannot be accomplished by any work or
merit by man to somehow achieve good standing
with God, but instead is accomplished by and
through the work of Jesus Christ’s death on the
cross. Thus, by faith alone in Christ alone, man is
counted righteous by God.

This doctrinal requirement that a Christian must
pursue all aspects of his or her life in obedience to
Christ compels Christians to do more than give mere
intellectual assent. The Christian faith requires not
only belief, but also conduct, and this requirement
extends to every facet of the Christian’s life. See
James 2:17 (“So also faith by itself, if it does not have
works, is dead.”); Romans 12:1 (urging Christians,
“in view of God’s mercy,” to devote their entire beings

7

to Him as “true and proper worship”); see also Korte
v. Sebelius, 735 F.3d 654, 681 (7th Cir. 2013) (noting
religious belief is not confined to the home and the
house of worship because “[rJjeligious people do not
practice their faith in that compartmentalized way.”);
The Baptist Faith & Message 2000, Article XV (“All
Christians are under obligation to seek to make the
will of Christ supreme in our own lives and in human
society. . . . Every Christian should seek to bring
industry, government, and society as a whole under
the sway of the principles of righteousness, truth,
and brotherly love.”).

Scripture and history are replete with instances
in which Christian believers who were presented
with a choice either to violate their consciences by
complying with the state’s demands or to face
draconian penalties chose to maintain the integrity
of their faith in every aspect of life and accept the
consequences. See generally John Foxe, Acts and
Monuments (1563) (recounting anecdotes of early
Protestant martyrs). For example, the Old Testament
Scripture recounts the story of three Hebrew men
who refused to worship an image of Babylonian King
Nebuchadnezzar, despite the threat of execution for
noncompliance. Daniel 3:1-30. Shadrach, Meshach,
and Abednego were cast “into the burning fiery
furnace” for refusing to worship the king’s image. Id.
Although the Babylonian government conceived the
requirement of bowing down to the image as merely
an act of political loyalty, the three young men
understood it as a requirement to violate their faith
through idolatry. Jd.

Similarly, the second-century Christian martyr
Polycarp was willing to suffer death for refusing to
state “Caesar is Lord.” See Justo L Gonzalez, The

8

Story of Christianity, Vol. 1, 43-44 (1984). To the
Roman government, the law was merely a political
issue, but to Polycarp, it was an issue of idolatry.
Likewise, the Protestant reformer Martin Luther,
when asked to recant his beliefs, famously stated to
Emperor Charles V. “[M]y conscience is captive to
the Word of God. I cannot and I will not recant
anything, since it is neither safe nor right to go
against conscience. May God help me. Amen.” Martin
Luther, Luther’s Works, Vol. 33: Career of the
Reformer II (1972).

Baptist history in. America abounds with
examples of the doctrinal connection between faith
and practice, even when that faith compelled action
that ran contrary to the social mores of the day. For
example, Roger Williams—founder of the first
Baptist church in America—founded the only colony
to prohibit slavery and tolerate religious dissenters.
See Aaron Schwabach, Thomas Jefferson, Slavery,
and Slaves, 33 T. Jefferson L. Rev. 1, 14 n. 73 (2010)
(noting that the colony of Rhode Island, under
Williams’ leadership, “prohibited slavery, tolerated
Quakers and Jews, and endeavored to maintain
peaceful relations with the Pequod Indians, who had
been the victims of massacre and enslavement by the
Massachusetts settlers”). Similarly, John Leland, a
widely known Baptist minister in colonial Virginia,
was a staunch abolitionist and a firm voice in
support of religious liberty, free from government
coercion and control:

“Does a man upon entering into social
compact surrender his conscience to
that society to be controled by the laws
thereof . . . ?” I judge not, for the
following reasons:

9

1. Every man must give an account of
himself to God, and therefore every
man ought to be at liberty to serve
God in that way that he can best
reconcile it to his conscience. If
government can answer for
individuals at the day of judgment, let
men be controled by it in religious
matters; otherwise let men be free.

John Leland, The Right of Conscience Inalienable
(1791), available at http://berkleycenter.georgetown.
edu/resources/quotes/john-leland-the-right-of-conscie

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

and-individuals (last visited August 7, 2015); see also
Mark S. Scarberry, John Leland and James
Madison: Religious Influence on the Ratification of
the Constitution and on the Proposal of the Bill of
Rights, 113 Penn St. L. Rev. 733 (2009).

In light of these Scriptural commands, Christian
doctrine, and Baptist tradition, it is no surprise that
the types of work done by Petitioners, amici, and
related organizations—e.g., funding and organizing
international missions, educating students and
church members from a Christian perspective, and
providing physical and spiritual care for orphans and
widows—are, in fact, spiritual obligations that are
ministerial and sacred in nature. See, e.g., Matthew.
25:37-40; Matthew 28:19; James 1:27; see also The
Baptist Faith and Message 2000 Art. XII (“An
adequate system of Christian education is necessary
to a complete spiritual program for Christ’s people.”);
The Baptist Faith and Message 2000 Art. XV (“We
should work to provide for the orphaned, the needy,
the abused, the aged, the helpless, and the sick.”);
SBC Resolution On Adoption and Orphan Care, 2009

10

Me encourage local churches to champion the
evangelism of and ministry to orphans around the
world.“), available at http://www.sbc.net/resolutions/
1194 (last visited August 7, 2015). In light of that
spiritual duty, it is not surprising that Petitioners
refuse to quail before the government’s demand to
violate conscience or suffer government sanction.

In sum, because Christian doctrine requires that
faith govern every aspect of a Christian’s life and
teaches that a Christian’s conscience is captive to the
word of God, Christians must act in accordance with
their beliefs and in integrity of conscience in every
aspect of life. Simply stated, the exercise of Christian
faith must, as a matter of scriptural teaching, church
tradition, and denominational doctrine, guide and
determine a Christian’s decisions, choices, words,
and deeds, both in private and in every facet of life.

II. Scripture and Southern Baptist doctrine
teach that life begins at conception and
therefore abortion is the taking of innocent
human life and is a grave moral wrong.

Southern Baptists have spoken clearly in
opposition to abortion and in support of their belief
that life begins at conception. These beliefs are
grounded in the words of Scripture, which teach that
God’s knowledge of, care for, and sovereign plan for
each person begins long before birth. See Jeremiah
1:4-5 (“Now the word of the Lord came to me, saying,
‘Before I formed you in the womb I knew you, and
before you were born I consecrated you; I appointed
you a prophet to the nations.”); Psalm 139:13-16
(noting that God “formed my inward parts
knitted me together in my mother’s womb,” and
knew “the days that were formed for me, when as yet

11

there was none of them”); Luke 1:39—44 (recounting
that when Elizabeth, who was pregnant with John
the Baptist, met Mary who would be the mother of
Jesus, “the baby in [her] womb leaped for joy’).

These and other Scriptural teachings can be
distilled into four core principles undergirding the
Baptist pro-life belief. First, God holds human life in
high regard because “God created man in his own
image.” Genesis 1:27. Being made in the image of
God stamps every human life with intrinsic worth
and dignity. Second, Scripture teaches that a
mother’s womb contains a liviug human being
created by God. Thus, abortion ends a human life.
For example, in Luke 1:39—44, the inspired author of
the Scripture describes the “baby” (Gr. Bpeqog) in
Mary’s womb using the same word as is elsewhere
used to describe an infant who has been born. The
same scriptural passage affirms the personhood of
the baby in the womb by ascribing to him the
quintessentially human emotion of “joy.” Third, God’s
word consistently condemns the killing of innocent
human beings. See Proverbs 6:16—17 (declaring that
God “hates . . hands that shed innocent blood.”);
Psalm 106 (describing how the “anger of the Lord
was kindled” when his people “poured out innocent
blood, the blood of their sons and daughters“).
Finally, God calls his followers to “open your mouth
for the mute, for the rights of all who are destitute,”
Proverbs 31:8, and, as there is “opportunity[,] . . . do
good to everyone,” Galatians 6:10. No one is more
mute or defenseless than the 1.2 million unborn slain
annually in the United States through abortion.

In keeping with these Scriptural teachings,
Southern Baptists stand firmly in support of the
sanctity of human life, including the unborn. See The

12

Baptist Faith and Message 2000 Art. XV (“We should
speak on behalf of the unborn and contend for the
sanctity of all human life from conception to natural
death.”); id. at Art. XVIII (“Children, from the
moment of conception, are a blessing and heritage
from the Lord.”); SBC Resolution On Adoption and
Orphan Care, 2009 (“Southern Baptists have
articulated an unequivocal commitment to the
sanctity of all human life, born and unborn.”); SBC
Resolution On Thirty Years of Roe v. Wade, 2003
(“The Bible affirms that the unborn baby is a person
bearing the image of God from the moment of
conception.”); SBC Resolution on Sanctity of Human
Life, 1991 (“Southern Baptists have historically
affirmed biblical teaching regarding the sanctity of
human life by adopting numerous pro-life resolutions
at the national, state, and local levels.”); SBC
Resolution On Encouraging Laws Regulating
Abortion, 1989 (“Southern Baptists have historically
upheld the sanctity and worth of all human life, both
born and preborn, as being created in the image of
God.”); SBC Resolution on Abortion, 1984 (noting an
unborn child “is a living individual human being”).
In accordance with these beliefs about unborn
human life, Southern Baptists have a firm and well-
known theological opposition to abortion, and the
Southern Baptist Convention has _ repeatedly
expressed its opposition to abortion in the strongest

4 Resolutions available at http://www.sbc.net/resolutions/1194/
on-adoption-and-orphan-care, http:/Awww.sbc.net/resolutions/11
30/on-thirty-years-of-roe-v-wade, http://www.sbc.net/resolutions/
619/resolution-on-sanctity-of-human-life, http://www.sbc.net/res
olutions/23/resolution-on-encouraging-laws-regulating-abortion,
and http://www.sbc.net/resolutions/2 1/resolution-on-abortion
(links last visited August 7, 2015).

13

terms. See SBC Resolution On Adoption and Orphan
Care, 2009 (“The satanic powers and the ravages of
sin have warred against infants and children from
Pharaoh to Molech to Herod and, now, through the
horrors of a divorce culture, an abortion industry,
and the global plagues of disease, starvation, and
warfare.”); SBC Resolution On Planned Parenthood,
2008 (“Scripture speaks to the sanctity of human life
in the womb [] and God’s abhorrence of those who
murder the innocent.”); SBC Resolution on Sanctity
of Human Life, 1991 (“[W]e . . . affirm the biblical
prohibition against the taking of unborn human life
except to save the life of the mother; and . . we call
on all Southern Baptists to work for the adoption of
pro-life legislation in their respective states which
would expand protection for unborn babies.”); SBC
Resolution On Encouraging Laws Regulating
Abortion, 1989 (“[T]he messengers to the annual
meetings of the Southern Baptist Convention during
the past decade have repeatedly reaffirmed their
opposition to legalized abortion, except in cases
where the mother’s life is immediately threatened ...
[and] we do reaffirm our opposition to legalized
abortion.”); SBC Resolution on Abortion, 1984
(characterizing abortion-on-demand as a “national
sin”).5

In addition, Southern Baptists have expressly
opposed the use of abortion-inducing drugs such as

5 Resolutions available at http://www.sbc.net/resolutiona/1194/
on-adoption-and-orphan-care, http://Awww.sbc.net/resolutions/
1191/on-planned-parenthood, http:// www.sbc.net/resolutions/
619/resolution-on-sanctity-of-human-life, http://www. sbc.net/res
olutions/23/resolution-on-encouraging-laws-regulating-abortion,
and _http://www.sbc.net/resolutions/2 1/resolution-on-abortion
(inks last visited August 7, 2015).

14

the so-called morning-after pill because such drugs
kill an unborn human person. See SBC Resolution on
RU 486, 1994 (“RU 486, the French abortion pill, is a
direct assault on the sacredness and value of unborn
human life in that this drug kills an unborn child
whose heart has already started to beat.”); SBC
Resolution on Sanctity of Human Life, 1991 (Wie
oppose the testing, approval, distribution, and
marketing in America of new drugs and technologies
which will make the practice of abortion more
convenient and more widespread.“). 8

In keeping with these Baptist beliefs and historic
Protestant beliefs,’ prominent Southern Baptist
theologians and ministers have and continue to decry
the grave moral wrong of abortion. See R. Albert
Mohler, Jr., “J Feel Super Great About Having an
Abortion - ne Culture of Death Goes Viral, May 8,
2014; ERLC Letter to Congress on No Taxpayer
Funding for Abortion Act, January 27, 2014; R.
Albert Mohler, Jr., So What if Abortion Ends a Life?
Rare Candor from the Culture of Death, February 1,

6 Resolutions available at http://www.sbc.net/resolutions/25/
resolution-on-ru-486-the-french-abortion-pill; http://www.sbc.
net/resolutions/619/resolution-on-sanctity-of-human-life (links
last visited August 7, 2015).

7 Indeed, the Reformers denounced abortion as a grave moral
evil. See, e.g., Martin Luther, Luther’s Works, Vol. 4: Lectures on
Genesis Chapters 21-25 at 304 (tr. Jaroslav Pelikan, 1999)
(“How great, therefore, the wickedness of human nature is! How
many girls there are who prevent conception and kill and expel
tender fetuses, although procreation is the work of God!”); John
Calvin, Commentaries on the Last Four Books of Moses, Vol. 3
at 51-52 (tr. Charles Bingham, 1852) (“[T]he foetus, though
enclosed in the womb of its mother, is already a human being,
and it is almost a monstrous crime to rob it of the life which it
has not yet begun to enjoy.”).

15

2013; R. Albert Mohler, Jr., “Abortion is as American
as Apple Pie The Culture of Death Finds a Voice,
January 20, 2012;8 Carl F.H. Henry, Has Democracy
Had Its Day? at 28-29 (1996) (commending those
“who resisted the federal government’s intrusion into
the sphere of religious values, notably . . . the public
funding of abortion”); Carl F.H. Henry, Twilight of a
Great Civilization at 34 (1988) (“[W]hen government
engages in programs that violate Christian
conscience, such as funding abortions, .. bold
protest is proper.”).

These beliefs and obligations guide not only
Southern Baptist ministers and individuals, but also
instruct the policy and practice of all Southern
Baptist ministries and entities. See SBC Resolution
on Abortion, 1987 (“[W]e encourage all agencies and
institutions of the SBC to use their resources and
program ministries to promote the sanctity of human
life.”), available at http://www.sbc.net/resolutions/22/
resolution-on-abortion (last visited August 7, 2015).

In light of the clear Southern Baptist conviction
on the sanctity of life and the moral wrong of
abortion, it is no surprise that Southern Baptist
entities like Petitioners refuse to provide abortion-
inducing drugs either directly or indirectly by
authorizing, obligating, or incentivizing their health
care providers to do so using Petitioners’ health plan
information and infrastructure.

8 Available at http://www.albertmohler.com/2014/05/08/i-feel-super-
great-about-having-an-abortion-the-culture-of-death-goes-viral/;
http://www.erlc.com/documenta/pdf/20 140 127-ltr-house-ntffaa.pdf;
http://www.albertmohler.com/2013/02/0 1/s0-what-if-abortion-ends-
a-life-rare-candor-from-the-culture-of-death/; http://www.albert
mohler.com/2012/01/20/abortion-is-as-american-as-apple-pie-the-
culture-of-death-finds-a-voice/ (links last visited August 7, 2015).

16

III. Christian doctrine and Southern Baptist
teaching state it is a sin for a Christian to
enable or aid another in doing what the
Christian believes to be wrong.

As a result of the holistic scope of the Christian
faith and the Southern Baptist theological opposition
to abortion, the Petitioners, as a matter of doctrine
and conscience, cannot distribute abortion-inducing
drugs and devices either directly or indirectly by
authorizing, obligating, or incentivizing their own
third-party administrators to use Petitioners’ health
plans to provide such drugs and devices to others.
Christian doctrine, like the civil and criminal law of
this nation, teaches that one who knowingly aids or
abets another's wrongdoing has himself done wrong.
See, e.g., Matthew 18:6 (“[W]hoever causes one of
these little ones who believe in me to sin, it would be
better for him to have a great millstone fastened
around his neck and to be drowned in the depth of
the sea.”); Romans 14:13-14 (“Therefore let us not
pass judgment on one another any longer, but rather
decide never to put a stumbling block or hindrance in
the way of a brother” and thus cause them to sin); J
Corinthians 8:9-13 (warning Christians to take care
not to be a “stumbling block” to others and noting
that by “sinning against your brothers and wounding
their conscience when it is weak, you sin against
Christ”); The Larger Catechism of the Westminster
Assembly 245 (1841) (“That what is forbidden or
commanded to ourselves, we are bound, according to
our places, to endeavour that it may be avoided or
performed by others.”).

This principle applies with particular force to
situations in which a Christian’s action or inaction
involves the taking of life. See The Large Catechism

17

by Martin Luther (1529), reprinted in Triglot
Concordia: The Symbolical Books of the Ev. Lutheran
Church (1921) (“So also, if you see any one innocently
sentenced to death or in like distress, and do not save
him, although you know ways and means to do so,
you have killed him.”); Thomas Vincent, An
Explanation of the Assembly’s Shorter Catechism
171-72 (1806) (“We are forbidden to kill .. . others,
either directly . . or indirectly, by doing any thing
that tendeth thereunto. ... We may be guilty of the
murder of others, indirectly, by doing any thing
that tendeth to take away .. others lives.“).

Congress and State legislatures have long
recognized that one’s sincere religious beliefs may
prevent him from approving, authorizing, or aiding
another in something the believer considers to be
wrong, even if the believer is not himself committing
the underlying wrong. For example, Congress
exempts religious conscientious objectors not only
from combat roles but from participation “in any
form” in war. 50 U.S.C. App. § 456G); Hanna v.
Secretary of the Army, 513 F.3d 4 (Ist Cir. 2008)
(upholding permanent injunction exempting Coptic
Christian physician from active duty because she
could not perform her chosen profession in the
military context without violating her deeply held
religious beliefs). Also, physicians and hospitals with
a religious objection to abortion are exempt not only
from performing abortion but also from assisting,
making their facilities available, or even making
referrals for abortion. 42 U.S.C. § 300a-7; 42 U.S.C.
§ 238n. Similarly, “eleven states and the federal
government have adopted some type of statute or
regulation to ensure that individuals are not forced
to participate in executions against their will.” Mark

18

L. Rienzi, The Constitutional Right Not to Kill, 62
Emory L.J. 121, 139 (2012).

The courts, like the legislatures, recognize that
one’s religious beliefs may prevent believers from any
attenuated authorization or complicity in conduct
they consider to be wrong. See, e.g., Hobby Lobby
Stores, Inc. v. Sebelius, 723 F.3d 1114, 1142 (10th
Cir. 2013), affd sub nom. Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751 (2014) (“And the
question here is not whether the reasonable observer
would consider the plaintiffs complicit in an immoral
act, but rather how the plaintiffs themselves
measure their degree of complicity.”); Gilardi v. U.S.
Dept. of Health and Human Servcs., 733 F.3d 1208,
1215 (D.C. Cir. 2013), vacated on other grounds, 134
S. Ct. 2902 (2014) (noting that “even attenuated
participation may be construed as a sin”); Thomas v.
Anchorage Human Rights Comm n, 165 F.3d 692 (9th
Cir. 1999), vacated on other grounds, 220 F.3d 1134
(9th Cir. 2000) (en banc) (recognizing a Christian
landlord’s sincere religious belief that unmarried
cohabitation was sin merited exemption from state
and local housing laws); State by Cooper v. French,
460 N.W.2d 2, 7 (Minn. 1990) (same, under
Minnesota Constitution). Indeed, courts have
previously recognized this concept in this very
context. Hobby Lobby, 723 F.3d at 1140 n.15 (“The
assertion that life begins at conception is familiar in
modern religious discourse... Moral culpability for
enabling a third party's supposedly immoral act is
likewise familiar.”).

The statutory and judicial religious exemptions
enumerated above are notable for several reasons.
First, none of them make the applicability of the
exemption dependent on whether the religiously

19

motivated conduct involves “sacred” or seemingly
“secular” conduct. See Attorney Gen. v. Desilets, 636
N.E.2d 233, 238 (Mass. 1994) (“The fact that the
defendants’ free exercise of religion claim arises in a
commercial context . does not mean that their con-
stitutional rights are not substantially burdened.”).
Second, they recognize that religious belief not only
prevents believers from engaging directly in sin but
also prevent any participation, authorization, or
enabling of what they consider to be sin. See Rienzi,
62 Emory LJ. at 139 (noting the statutory
exemptions from participating in capital punishment
“protect the individual not only from direct
involvement—such as personally administering a
lethal injection or turning on the electric chair—but
also less direct involvement such as preparing the
individual and apparatus used, supervising other
people who will do these things, or even attending
the execution.”). Finally, many of these exemptions
involve situations involving the taking of human life,
recognizing that to compel individuals to participate
in what they believe to be an unjustified taking of life
imposes a grievous burden on the exercise of their
beliefs.

Here, like in the foregoing examples, the
Petitioners’ refusal to be complicit in wrongdoing is
in no way undercut by the fact that Southern
Baptists, like other Christians over the past two
millennia, pay taxes that may ultimately be used to
fund objectionable acts. The payment of taxes is
distinguishable in several ways. First, Jesus
expressly commanded his followers to do so—a
command given to hearers who would have found
many of Caesar’s activities to be objectionable—while
simultaneously recognizing that payment of taxes

20

did not forfeit a believer's primary obligations to
follow God’s commands. See Mark 12:17 (“Jesus said
to them, ‘Render to Caesar the things that are
Caesar’s, and to God the things that are God's.”).
Second, the act of paying a tax does not itself require
one citizen to intentionally, directly, and personally
obligate, authorize, incentivize, or materially assist
another citizen to engage in known objectionable
conduct. In contrast, the HHS mandate forces the
Petitioners to sign and deliver a form with the
purpose of expressly authorizing or incentivizing the
use of Petitioners’ own health plan information and
infrastructure to provide abortion-inducing drugs;
drugs whose sole purpose and use is inherently
morally objectionable and which otherwise would not
be provided. Third, the vast majority of each tax
dollar paid by Petitioners is spent on things that they
do not find inherently morally objectionable, a fact
that comports with the Scriptural recognition that a
proper function of the state is to do good and punish
evil. See Romans 13:3-7. Here, in contrast, the
certain effect of participating in the mandate scheme
is to authorize, obligate, or incentivize Petitioners’
third-party administrators to engage in specific
conduct Petitioners find morally objectionable, and in
a way that requires Petitioners’ ongoing support and
assistance (by maintaining and regularly updating
the health plan information and infrastructure).

In analogous contexts, courts have implicitly
recognized a distinction between complicity in
wrongdoing and the mere payment of taxes. For
example, the Supreme Court has recognized that a
pacifist has a legitimate moral objection to being
forced to work in a factory making war goods. See
Thomas v. Review Bd. of Indiana Employment Sec.

21

Div., 450 U.S. 707 (1981). The fact that Thomas also
paid taxes that were used to support the war effort
did not scuttle his argument that manufacturing

weapons made him complicit in the war and thus
violated his religious beliefs.

In sum, scriptural teaching and Southern Baptist
doctrine state it is a sin for a Christian to enable or
aid another in doing what the Christian believes to
be wrong. As a matter of doctrine and conscience,
Petitioners cannot comply with the government’s
mandate to delegate to another the repugnant task of
distributing abortion-inducing drugs and devices.

IV. Requiring Christians to choose between
violating the Government’s regulations
or violating their sincerely held religious
beliefs substantially burdens their
exercise of religion.

The Religious Freedom Restoration Act of 1993
(“RFRA”), 42 U.S.C. §§ 2000bb et seq., prohibits the
federal government from substantially burdening “a
person’s exercise of religion,” id. at § 2000bb-1(a),
unless applying that burden is the “least restrictive
means of furthering . . . [a] compelling governmental
interest,” id. at § 2000bb-1(b). In enacting RFRA,
Congress sought to restore the compelling interest
test for defenses to claims that a facially neutral law
of general applicability “substantially burdens” the
free exercise of religion—a test that had been
abandoned by the Supreme Court in Employment
Division, Department of Human Resources v. Smith,
494 U.S. 872 (1990). See 42 U.S.C. § 2000bb(b)(1)
(“The purposes of this chapter are: (1) to restore the
compelling interest test as set forth in Sherbert v.
Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder,

22

406 U.S. 205 (1972) and to guarantee its application
in all cases where free exercise of religion is
substantially burdened.”) (emphasis added). Thus,
RFRA creates a statutory right to exemption from
laws that substantially burden sincere religious
beliefs, even if the law is neutral and generally
applicable, unless the government can prove that
“strict scrutiny” is met. O’Bryan v. Bureau of Prisons,
349 F.3d 399, 401 (7th Cir. 2003).

The existence of a substantial burden is most
apparent when the government forces a person or
group to “perform acts undeniably at odds with
fundamental tenets of their religious beliefs.”
Wisconsin v. Yoder, 406 U.S. 205, 218 (1972) (finding
that compulsory formal secondary education was an
undue burden on the free exercise of Amish parents’
religion). Further, a substantial burden can arise
indirectly if the receipt of benefits is conditioned on
the performance of conduct proscribed by a religious
faith, or benefits are denied because of conduct
required by a religious faith. Thomas, 450 U.S. at
717-18 (determining that a denial of unemployment
benefits to an employee who had a religious objection
to war was a burden on his religion).

As a threshold matter, the religious objection or
conduct at issue must be both sincere and religious.
Hobby Lobby, 723 F.3d at 1140. The religious belief
is not, however, required to be central to the person’s
faith, 42 U.S.C. § 2000cc-5(7)(A), nor is it required to
be a “correct” interpretation. See United States v.
Lee, 455 U.S. 252, 257 (1982) (“Courts are not
arbiters of scriptural interpretation.”); id. at 261 n.12
(courts cannot “speculate whether” the peculiarities
of a legal scheme “ease or mitigate the perceived sin
of participation”) (quoting Thomas, 450 U.S. at 716)).

23

Instead, a party must only show an “honest
conviction” that the pressure from the government
substantially conflicts with his religion. Thomas, 450
U.S. at 716. Rather than questioning the validity of
the belief, the court undertaking the substantial
burden analysis under RFRA should focus on the
intensity of the coercion applied by the government,
requiring that the restrictive law protect “interests of
the highest order.” Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).

Christian doctrine requires Christian individuals
and entities to consistently conduct themselves in
accordance with their beliefs. See Part I, supra.
Furthermore, Christians should not be required to
abandon the task to which they have been called by
God solely because of governmental intrusion and
penalties. See The Baptist Faith & Message 2000,
Art. XVII (“Civil government being ordained by God,
it is the duty of Christians to render loyal obedience
thereto in all things not contrary to the revealed will
of God. . . The state has no right to impose penalties
for religious opinions of any kind.”), available at
http://www.sbc.net/bfm2000/bfm2000.asp (last visited
August 7, 2015). Forcing Southern Baptist entities
like Petitioners to choose between paying crippling
fines by conducting their ministries in accord with
their religious tenets or sacrificing those core values
in order to preserve the ministry is exactly the type
of coercion the substantial burden test encompasses.

The Supreme Court has previously recognized
that sincerely-held religious beliefs subject to
government pressure at the workplace can result in a
substantial burden on religion. Thomas, 450 U.S. at
716 (finding a substantial burden where an employee
with a religious belief against producing war

24

materials was denied unemployment benefits after
quitting when transferred to a factory producing
tank turrets); Sherbert, 374 U.S. at 404 (holding the
denial of unemployment benefits placed a substantial
burden on a Seventh-Day Adventist who quit her job
after being forced to work on Saturday).

Significantly, the government has recognized this
substantial burden by establishing exemptions for
other religious groups cornered into making this
choice. See 45 C.F.R. § 147.131 (2013) (allowing
HRSA to exempt religious employers from
requirement to cover contraceptive services under
group health plan); see also 78 Fed. Reg. 39870 (July
2, 2013) (“[G]jroup health plans established or
maintained by certain religious employers (and
group health insurance coverage provided in con-
nection with such plans) are exempt from the
otherwise applicable requirement to cover certain
contraceptive services”). The discrimination involved
in the Government's exemption of some groups only
compounds the burdensome nature of the fines
imposed on non-exempt groups that share the same
religious views. Sherbert, 374 U.S. at 406 (noting a
prohibition against requiring employees to work on
Sunday compounds the unconstitutionality of forcing
a Sabbatarian to work on Saturday).

In sum, the government’s mandate substantially
burdens the religious exercise of Petitioners’
Christian ministries by imposing draconian fines for
acts specifically mandated by Christian doctrine.

25

CONCLUSION

For the foregoing reasons, amici respectfully
request this Court grant the petition for a writ of
certiorari and set the case for plenary review of
whether centuries-old religious groups may practice
their historic beliefs free from intrusive regulation.

August 24, 2015

Respectfully submitted,

Miles E. Coleman
Counsel of Record
Jay T. Thompson
NELSON MULLINS RILEY &
SCARBOROUGH, LLP
1320 Main Street
Columbia, SC 29201
miles.coleman@nelsonmullins.com
(803) 799-2000

Derek Gaubatz
INTERNATIONAL MISSION BOARD

3806 Monument Avenue
Richmond, VA 23230

Counsel for Amici Curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0597%3A17. Public record. Not legal advice.