Conestoga Wood Specialties Corp. v. Secretary of the United States Department of Health & Human Services

Aston sug- deal if had acted Shotts No. 13-1144.

gests.4 United States Court of Appeals, Hj Third Circuit. H*

Hi Hs H* H* Argued May 2013. exceptional In the circumstances of this case, Pennsylvania Superior Court’s July Filed: application of the rule Hubbard exor- was

bitant and does not bar federal review.

When we consider claim on Shotts’ however,

merits, that he we conclude

not demonstrated Aston’s ineffectiveness. affirm judg-

Thus we the District Court’s denying petition

ment Shotts’ for habeas

corpus.

CONESTOGA WOOD SPECIALTIES

CORPORATION; Hahn; Norman Anthony Hahn; Lemar

Norman H.

Hahn; Hahn; Hahn, Elizabeth Kevin

Appellants OF

SECRETARY the UNITED STATES

DEPARTMENT OF HEALTH AND SERVICES; Secretary

HUMAN Unit- Labor; Department

ed States Sec-

retary Department United States Treasury; Depart- United States Services;

ment Health and Human Labor; Department States

United Department

United States of the Trea-

sury. here). Nonetheless, pause given 4. We pos- note our concern with the case sentencing judge’s actions in this case—both ture of this case and limitations embedded offering opinion plea judgment, on the deal and im- habeas review of state court posing calculating ag- grounds sentence these per- without are not for relief. Aston’s (unless gregate incarceration that resulted formance was not deficient because he failed pre-sentence sentencing judge’s calculation could result in a account for the uncon- imprisonment, necessarily of life sentence ventional behavior. Proctor, III, Esq. (Argued), Physicians for gists; Reproductive Charles W. Choice Proctor, Dixon, Lindsay Appellees. & and Health Amici on Behalf Law Offices of Ford, PA, L. Wenger, Chadds Randall Blatt, Porter, Esq., Lisa S. Arnold & PA, Esq., Harrisburg, Appellants. for DC, for Washington, Center for Reproduc- Bennett, Esq., Alisa B. Michelle Renee Rights; tive American Public Health Asso- Klein, Stern, (Argued), ciation; Esq. Esq., Institute; Mark B. Guttmacher National Justice, Department United States Civil Family Planning Reproductive Health Division, DC, Washington, Appellees. for Association; National Latina Institute for Health; Reproductive National Women’s Sacramento, Angela Thompson, Esq., C. Network; Reproductive Health Health CA, for States Justice Foundation United Technologies Project; R Alta Amici Charo Appellants. Amicus on Behalf of Behalf Appellees. on Khan, Ayesha Gregory M. Esq., N. Colby, Esq., Kimberlee W. Christian Le- DC, Lipper, Washington, for Ameri- Esq., Society for gal Religious Center Law & Separation cans United for of Church and Freedom, VA, for Springfield, Institutional State; Judaism; for Reform Cen- Union Religious Alliance; Group; C12 Freedom Rabbis; tral Conference American Society; Legal Christian Ethics and Reli- Foundation; Hindu American Women of Liberty gious Commission of the Southern Reform Ap- Judaism Amici on Behalf of Convention; Baptist Association Chris- pellees. Schools; tian Gospel Association for. Res- Weber, Esq., Boyle Litigation, Travis S. Missions; cue National Association of PA, Hill, Camp for For Life Democrats Evangelicals; Henry College; Patrick America; Stupak on Behalf Bart Amici Prison Fellowship Ministries Amici on Be- Appellants. Appellants. half of Smith, DC, Esq., Washington, Mailee R. Somers, Esq., Sarah National Health Physicians for Association of American Carrboro, NC, Program, Law for Asian Surgeons; American of Pro Association Center; Legal Pacific American Black Life Gynecologists; Obstetricians Imperative; Campaign Women’s Health Association; Christian Medical Catholic Aids; Together; Housing End Forward Association; Life; Medical Physicians for Works; Legal Mexican American Defense Bioethics; National Catholic National As- Fund; and Educational Health National sociation Pro Life Nurses Amici Be- Program; Hispanic National Medical As- half of Appellants. sociation; National Women and AIDS Col- Schneider, Stroock, Esq., Bruce H. lective; Sexuality & Information Edu- Lavan, York, NY, Stroock & New for States; IPAS; cation Council of United Society Reproductive American for Medi- Project Ap- HIV Law Amici on Behalf of cine; Society for Health Adolescent and pellants. Medicine; American Medical Women’s As- Walsh, Brendan M. Pashman Esq., sociation; National Association of Nurse Hackensack,. NJ, Stein, for Orrin G. Health; Society Practitioners in Women’s Hatch; Inhofe; Coats; James M. Daniel R. Trussell; Family Planning; James Su- McConnell; Portman; Mitch Rob Pat Wood; san F. Don Downing; Kathleen Appellants. Roberts Amici on Behalf of Besinque; Society Emergen- American for Swansboro, Dewart, cy Deborah Contraception; Repro- Esq., Association J. Professionals; NC, ductive Liberty Health American Life and Law Foundation College Gynecolo- of Appellants. of Obstetricians and Amicus Behalf Gosselin, Foundation; Richard National Coalition of Esq., M. anee P.

Jason Drinker, Jr., Biddle Esq., Nuns; & National Council of Haggerty, American PA, Jersey Reath, for New Philadelphia, Repro- Inc. Religious Women Coalition on Behalf of Family Policy Council Amicus Institute; Religious Choice ductive Unita- Appellants. Association; rian Unitarian Universalist Fitschen, Federation Amici on Universalist Women’s Esq., W. The National

Steven Foundation, Beach, VA, for Legal Virginia Appellees. Behalf Foundation; Bradley Legal P. National Ude, Esq., Legal Thomas W. Lambda Jacob; Defense of Life Texas Center for Fund, Inc., Defense & Education New Appellees. Behalf of Amici on NY, York, Legal for Lambda Defense & Paul, Davidow, Weiss, E. Esq., Charles Education Fund Inc. Amicus Behalf of Garrison, Rifkind, Washington, & Wharton Appellees. DC, Organization for Women for National Foundation; JORDAN, Law Cen- National Women’s Before: VANASKIE and Connection; ter; Service Em- Population COWEN, Judges. Circuit Union; Repro- Ibis ployees International Health; MergerWatch; Naral Pro

ductive OPINION America; Parenthood As- Choice Planned COWEN, Judge. Circuit Inc.; of the Mercer Area Planned sociation Appellants Specialties Conestoga Wood Pennsylvania; of Central Parenthood Hahn, Corporation (“Conestoga”), Norman Inc.; Parenthood of Delaware Planned Hahn, Hahn, Elizabeth Lemar Norman Parenthood of Northeast Middle Planned Hahn, (collec- Anthony Kevin Hahn and Pennsylvania County; and Bucks Planned Hahns”) tively, appeal “the from an order Pennsylvania; Parenthood of Southeastern denying of the District Court their motion Pennsyl- Parenthood of Planned Western a preliminary injunction. for In their vania; for Raising Women’s Voices Need; Appellants Complaint, allege regula- Health We Women’s Law Care Project; University American Association promulgated by Department tions Appellees. Amici on Behalf of Women (“HHS”), Health Human Services require plans which health group Bell, Musser, Clymer, Emily Esq., M. provide health insurance issuers to cover- Conrad, PA, Lancaster, Brown & age for violate contraceptives, the Reli- Breast Prevention Institute Coali- Cancer Act, Freedom Cancer; gious Restoration U.S.C. Polycarp tion on Abortion Breast (“RFRA”) Institute; § Amici on Behalf of 2000bb and the Free Research Exercise Appellants. of the Clause First Amendment of the States United Constitution.1 The District Mach, Esq., American Lib- Daniel Civil injunction, denied a preliminary con- Union, DC, for Washington, erties Ameri- cluding unlikely were Appellants Union; American can Civil Liberties Civil on the of their succeed merits claims. See Pennsylvania; Liberties Union Anti Conestoga Specialties Corp. Wood Sebel- League; for a Defamation Catholics Free ius, (E.D.Pa.2013). Choice; Hadassah; Ap- Zionist Or- Women’s ganization of America Inc. Interfaith Alli- then pellants expedited filed motion for claims, alleges regula- Complaint Appellants 1. The also that the these additional have Clause, the Establishment tions violate appeal regula- limited their whether Clause, Clause, Speech the Due Process Free tions violate the the Free RFRA and Exercise and the Administrative Procedure Act. While Clause. opinion District Court’s addressed some Court, stay pending appeal require group this non-exempt plans to was which denied. Wood cover Food Drug “[a]ll Administration Sec’y Specialties Corp. United methods, approved contraceptive steriliza- Servs., & Dep’t States Health Human tion procedures, patient education and (3d Cir. No. 2013 WL counseling reproductive women with 2013). Now, fully we Feb. consider the capacity.”2 These recommended guide- appeal the District briefed Court’s approved lines were HRSA. On injunction. preliminary denial of a 15, 2012, HHS, February Department Before we reach can even the merits Treasury, Department and the claims, the First Amendment and RFRA Labor published final rules memorializing must we consider threshold issue: guidelines. Fed.Reg. See 77 a for-profit, corporation whether secular (Feb. 2012).3 regulations, Under the engage able to exercise under group plans health health insurance Free Exercise Clause of the First required issuers are to provide coverage Amendment and the RFRA. As we con- guidelines consistent-with the HRSA for-profit, corporations clude that secular plan years 1, beginning August on or after exercise, engage in will cannot we the employer plan unless or the affirm the order of the District Court. Appellants exempt.4 refer to this require- “Mandate,” ment as we and use this I. throughout term opinion. Employers this passed Congress the Patient comply who fail to with the Mandate face a Act, Protection and Affordable Care penalty per day per offending $100 em- (March 2010) Pub.L. No. 111-148 ployee. § See 26 4980D. U.S-.C. The De- (“ACA”). requires' employers The ACA partment of Labor plan participants fifty or employees provide with more bring a against employer also suit an employees with a minimum level comply fails with the Mandate. non- requires health insurance. The ACA § See 29 U.S.C. 1132. exempt coverage group plans provide preventative without for care cost-sharing II. screening women accordance guidelines Re- created Health The own percent Hahns the vot- sources and Services Administration ing of .Conestoga. Conestoga shares is a (“HRSA”), subagency of HHS. See Pennsylvania for-profit corporation that § 300gg-13(a)(4). U.S.C. manufactures wood cabinets has 950 employees. The practice Hahns the Men- The HRSA delegated creation of religion. According nonite to their guidelines on this issue Institute (“IOM”). Complaint, The Amended the Mennonite Medicine IOM recom- adopt guidelines taking mended the HRSA of life Church “teaches which Required exemptions encompass "grandfa- 2. See Women's Preventive Services: 4.The Guidelines, plans, plans thered” which Coverage Plan are that were in Health available on (last existence March see 45 C.F.R. www.hrsa.gov/womensguidelines visited "religious employers,” § 147.140 see 45 2013). July 147.130(a)(l)(iv)(B). Additionally, § C.F.R. requirement provide employer the ACA regulations updated July 3. These were on sponsored employees health insurance to 2, 2013). Fed.Reg. (July See 78 entirely inapplicable employers that have changes impact The recent have no this employees. fewer than 26 U.S.C. litigation. 4980H(a), (c)(2)(A). § appellate § 1331. has a ferti- This Court that terminates U.S.C. anything includes 1292(a)(1). § evil and a sin jurisdiction is intrinsic under 28 U.S.C. embryo lized are held ac- they which God to against seeking preliminary “A party ¶ 30.)5 .(Am. Specifi- Compl. countable.” (1) a injunction must likelihood of show: object drugs to two the Hahns cally, (2) merits; oil the that will suf success plans health group provided must be injunction harm if the irreparable fer “may cause the Mandate that under (3) denied; preliminary relief granting yet already but not of an conceived demise greater result in harm to the will not even ¶ (Id. 45.) embryo.” attached human nonmoving party; that the public contraception” “emergency These Pharms., favors relief.” Kos interest such (the “morning Plan B after such as drugs (3d Andrx Corp., (the pill”). “week after pill”) and ella Cir.2004). seeking A plaintiff injunc im- Complaint alleges that it is Amended criteria, must meet four as “[a] tion all to inten- Appellants and sinful moral any failure element plaintiff’s to establish in, facilitate, for, tionally participate pay preliminary injunc favor in its renders a (Id. support drugs. otherwise these inappropriate.” tion NutraSweet Co. ¶ 32.) subject has been Inc., Enters., Vit-Mar January when Mandate as its Cir.1999). (3d This is the same standard plan up health came for renewal. group and, Court, applied ap District of this panel previously As a denied party questioned accuracy.6 no peal, pending Conestoga injunction appeal, an Appellants will first whether We consider Mandate, currently subject and in likely to the merits of are succeed on fact, represented dur- Appellants’ counsel claim, the claims beginning with asserted is cur- ing argument oral by Conestoga, for-profit, secular corpora rently complying the Mandate. tion. III. IV. court’s denial We review district A. injunction abuse preliminary of a for First, discretion, underlying Conestoga’s review fac we turn to but clear findings questions for error and claims under First Amendment. tual Un Amendment, “Congress novo. Am. Travel Re First Express of law de der the shall Sidamon-Eristoff, lated Servs. v. make no law the establishment respecting (3d Cir.2012). religion prohibiting The District Court or the free exercise over jurisdiction question had case under thereof.” The this this threshold addition, 31, 2012, scholarly In October Conesto- 6. The dissent undertaken a sur- ga’s adopted Board of "The Hahn Directors vey proper obtaining of the standard for Family Sanctity Statement on the of Human injunction preliminary throughout the coun- Life,” things, provides, amongst which other However, try. Appellants ap- never took an Family that "The Hahn believes that human preliminary injunction peal of the standard (at begins conception point life where (See applied Appel- Court. District unite) egg sperm and that it is a (statement present- lants’ Br. at 4-6 of issues gift from God sacred God has the Moreover, review).) ed for ac- dissent Therefore, it to terminate human life. knowledges "may be true” that against moral be involved in our conviction to satisfy any plaintiff’s failure in its element through the termination human life abor- injunction preliminary inap- renders a favor tion, suicide, euthanasia, murder, any or oth- 392-93.) (Dissenting Op. propriate. taking involve human life." er acts that ¶ (Id. 92.) Conestoga, for-profit, has held guarantees is whether Court that certain Court by corporations held corporation, religion. can exercise and that certain guar- secular essence, are “purely personal” antees Appellants offer two theories because “the In ‘historic function’ particular guaran- which we could conclude that Cones- under (a) has been protection tee limited to the toga directly, can exercise religion: individuals.” First Nat’l Bank Boston recent decision Supreme under Court’s Bellotti, 778 n. U.S. (b) United, in Citizens indirectly, un- (1978) (internal 55 L.Ed.2d 707 cita- “passed method that has through” der omitted). The Bellotti Court ob- tion Court of Appeals been articulated served: the Ninth We will Circuit. discuss Corporate identity has been determina- theory in turn. each tive in denying several decisions corpo- United, Citizens certain constitutional rights, rations sup held that “the Government such against as the privilege compulsory press political speech on basis of the self-incrimination, Wilson v. United identity,” speaker’s corporate and it ac States, 361, 382-386, 221 U.S. 31 S.Ct. cordingly statutory struck down restric 538, 545-546, (1911), L.Ed. corporate independent expendi tions on equality with enjoy- individuals ture. Citizens Fed. Election United ment of a right privacy, California Comm’n, 558 Shultz, Bankers Assn. v. 416 U.S. (2010). Citizens United 175 L.Ed.2d 753 1494, 1519-1520, recognizes of the- application First (1974); United States v. L.Ed.2d 812 corporations generally Amendment Co., Morton Salt 632, 651-652, without distinguishing between Free 357, 368-369, 94 L.Ed. 401 Exercise the Free Speech Clause and (1950), but this is not because the States Clause, both which are contained within are free to define the of their First Accordingly, Amendment. creatures without constitutional limit. Citizens United whether is applicable Otherwise, corporations could be denied question the Free Exercise is a Clause of the protection of all guar- constitutional Stores, Hobby Lobby impression. first antees, process including due and the — Sebelius, v. U.S.-, Inc. 133 S.Ct. equal protection of laws. Certain 641, (2012) (Sotoma 643, 184 L.Ed.2d 448 “purely personal” guarantees, such as Justice) (“This yor, Circuit court has not the privilege against compulsory self- previously addressed similar RFRA or incrimination, corpo- are unavailable to brought by closely free claims organizations rations and other because for-profit corporations held and their con the “historic of particular function” ”). trolling shareholders.... guarantee has limited to pro- been tection of individuals. United States v. While “a is ‘an corporation artificial White, 694, 322 invisible, U.S. 64 being, S.Ct. intangible, existing (1944). 1248, 1251-1252, L.Ed. 88 1542 law,’ only in contemplation ... a wide Whether or particular guarantee not a is variety rights may of constitutional be as - “purely personal” or is unavailable to Consol. Edison by corporations.” serted corporations other for some reason de- N.Y., Co. 338, Pataki nature, pends history, on (2d pur- Cir.2002) (quoting Dartmouth Coll. pose of the particular pro- constitutional Woodward, (4 Wheat.) 518, 636, v. 17 U.S. vision. C.J.)) (Marshall, 4 L.Ed. 629 In

analyzing Thus, guaran whether constitutional Id. we must consider whether apply corporations, Supreme historically tees Free Exercise pro- Clause Cal., “guar- whether Utils. or Comm’n corporations,

tected (1986) (“The or is S.Ct. 89 L.Ed.2d identi- unavailable ‘purely personal’ antee is “nature, ty in deter- speaker on his- not decisive corporations” based particular speech protected” con- whether as purpose mining tory, [this] associations, Id. and other like provision.” “Corporations stitutional individuals, ‘discussion, contribute to the United, Court Citizens debate, and the dissemination of informa- “recognized it has that pointed out that tion and ideas’ that First Amendment protection Amendment extends First foster.”) Bellotti, seeks (quoting United, corporations.” 558 U.S. Citizens 1407). 795, 98 U.S. at then more 130 S.Ct. It cited to 876. cases, as twenty early grounded Citizens United thus than 1950’s, long history as notion that the including landmark cases such Court has Sullivan, corporations’ protecting York free New Times Co. (1964), in speech. L.Ed.2d United overruled 84 S.Ct. Citizens Austin Commerce, recognized Michigan which First Chamber of rights apply to U.S. 108 L.Ed.2d 652 speech Amendment free (1990), id. Citizens 'Unit- a case which the Court had corporations. See Bellotti, particularly “uph[eld] relied on a direct restriction on the inde- ed Court prohibition pendent expenditure political a state-law which struck down funds corporate independent expenditures speech re- for the first time in [this Court’s] United, history.” lated to referenda issues. Bellotti held: 558 U.S. at Citizens Austin, (quoting U.S. at support We thus find no the First J., (Kennedy, 110 S.Ct. 1391 Amendment, dissent- or in deci- Fourteenth ing)). The Citizens United Court found Court, the proposition of this sions conflicting was “confronted with otherwise speech would pre-Austin lines precedent: line that protection within the First political speech forbids restrictions on protection simply Amendment loses that , speaker’s corporate based on the identify corporation is a' because source and a line them.” post-Austin permits prove, cannot of a satisfaction Id. Faced with this court, a material effect its business or conflict, the Court decided that Austin was proposition] property. [That amounts to decided, wrongly based on the otherwise impermissible legislative prohibition corpora- line of cases in consistent which speech identity based on the tions speech were found have free spokesmen represent interests that rights. in public debate over controversial is- requirement sues and the speaker history We must consider sufficiently great

have a interest in the Free Exercise Clause and determine subject justify communication. history whether there is a similar courts Bellotti, 784, providing 435 at 98 1407. free exercise protection corpo- U.S. S.Ct. rationale, Discussing Bellotti’s Citizens rations. We conclude that there is not. fact, that the case we are not any United stated “rested on In aware of case principle preceding the Government litigation lacks commencement of Mandate, corporations to ban from about in power speaking.” for-profit, which a United, 347, 558 at corporation Citizens U.S. secular was itself found to 876; rights.7 see also Pac. Gas & Elec. v. Pub. have free exercise Such a Co. total Circuit, acknowledge eight judge Appeals 7. We that the Court Tenth in an en

385 greater pray, of caselaw takes on even do not worship, absence observe sacra- compared to significance when the exten- or take religiously-motivat- ments other Court Supreme sive list cases address- ed separate apart actions from the rights speech corporations. free ing the intention and direction their individu- al actors. all, Supreme as the ob- After purpose in of the Schempp, served Stores, Sebelius, Hobby Lobby Inc. reli- Free Exercise “is to secure Clause (W.D.Okla.2012), liberty gious by prohibit- in the individual banc, 12-6294, rev’d en No. any by invasions thereof civil ing authori- 2013 WL 3216103 Cir. June Sch. ty.” Abington Twp. Dist. of 2013); Stores, Inc., Hobby Lobby see also Schempp, 374 U.S. WL added). (emphasis 10 L.Ed.2d 844 (Briscoe, C.J., *51 concurring part and aptly And as District Court noted in dissenting part) (questioning “whether a opinion, “[rjeligious shape belief takes all, corporation can ‘believe’at see Citizens individuals,

within the minds and hearts of (‘It United, 130 S.Ct. at 972 might also be its protection and. is one of the more corporations added that have no con- provided ‘human’ uniquely rights by sciences, beliefs, no no feelings, no Conestoga, 917 F.Supp.2d Constitution.” desires.’) (Stevens, J., no thoughts, con- for-profit at 408. We do how a not.see part curring dissenting in part).”). invisible, being, intangible, “artificial us to urging for-profit, hold that secu law,” existing only contemplation lar corporations religion, can exercise Ap Co., (quot- Edison 292 F.3d at 346 Consol. dissent, pellants, as well as the cite to Coll., (Mar- ing Dartmouth U.S. at 636 cases in which courts ruled in have favor of C.J.)), shall, that was created to make free exercise claims advanced money inherently could such an exercise See, organizations. e.g., Gonzales v. O right. “human” Espirita Centro Uniao Do Beneficente are unable to determine that We U.S, 418, Vegetal, “nature, history, purpose” of the Free (2006); L.Ed.2d 1017 the Luku Church of Exercise supports Clause conclusion Hialeah, Aye, mi Babalu for-profit, corporations secular L.Ed.2d 472 protected particular under this constitu- (1993). None of the cases relied on Bellotti, provision. tional secular, for-profit dissent involve corpora n. Even if S.Ct. 1407. we were will tions. We draw conclusion disregard recognition the lack of historical that, just recognized because courts have right, simply .we cannot understand the free exercise of churches and a for-profit, corporation— how secular religious entities, necessarily other fol apart its owners—can exercise reli- for-profit, corporations lows that secular gion. As another court a chal- considering can religion. As lenge Mandate noted: noted, recently text of Court “the the First not, corporations General business do ... gives special Amendment solicitude or separate apart the actions systems rights religious organizations.” the Ho belief of their individual owners employees, religion. They Evangelical sanna-Tabor Lutheran Sebelius, panel, recently separate opinions, in banc six v. No. 723 F.3d (10th 27, 2013). for-profit, corporations held that can WL secular Cir. June We disagree respectfully analy- assert RFRA and free exercise in that Court’s claims some with Stores, Hobby Lobby circumstances. Inc. sis. — EEOC, -, Id. 57 S.Ct. 255. U.S. fundamental.” Sch. v. & Church (2012). 694, 706, important language though 181 L.Ed.2d —even by indi means which That churches—as the Speech the Free Clause and Petition long en practice religion viduals in next another the appear Clause to one —have the Free protections the Exercise joyed Amendment, First the did find Court question is not determinative the Clause already had decided Gitlow for-profit, corporations secular of whether but incorporated, was rath- Petition Clause protections. granted be these same should precedent expand er cited Gitlow argue also Citizens Appellants doctrine to cover Petition incorporation Free applicable Exercise United Clause. First because “the authors Clause later, years in v. Con- Several Cantwell separated the Free Ex-

Amendment necticut, 310 U.S. Speech the Free Clause ercise Clause and (1940), Supreme Court in- L.Ed. semi-colon, showing continu- by a thus corporated the Free Exercise Clause. The (Appel- of intent between the two.” ation did Cantwell Court not cite to Gitlow as 34.) persuaded are not lants’ Br. at We Free authority incorporating Exer- use of a semi-colon means that that the Clause; words, cise in other it did not clause of the First Amendment must each follow Free automatically Exer- interpreted jointly. be just incorporated cise was because Clause fact, historically, In each clause has been Speech incorporated. the Free Clause was interpreted separately. Accordingly, Cantwell, after years Seven Everson v. in an developed courts have different tests Education, 1, 67 Board S.Ct. apply effort to these clauses. For exam- (1947), 91 L.Ed. 711 the Court incor- ple, while the various clauses of the First porated In the Establishment Clause. Ev- incorporated Amendment have been erson, the Court cited to Cantwell and by to the states the Due applicable made interpretation noted that Court’s Process Clause of the Fourteenth Amend- ment, applied Free did so at differ- Exercise Clause should times. of the Id. at Incorporation ent clauses Establishment Clause. began the First Amendment years Gitlow seven notably, S.Ct. 504. But it took York, New this; U.S. to hold and following the Court (1925), 69 L.Ed. 1138 where the Court did not pattern, same Cantwell auto- noted that “we and do assume that matically incorporate the Establishment speech press freedom of and of Thus, it automatically —which Clause. does not First protected by the Amendment all follow that clauses of the First Amend- from abridgment by Congress among —are interpreted identically. ment must be pro- the fundamental ‘liberties’ Second, Appellants argue Conesto- by process tected due clause religion ga “passed can exercise under Fourteenth from impairment Amendment theory, which was first through” developed later, years the States.” More than ten for the Ninth Appeals the Court Jonge De Oregon, v. Townley Engineering Circuit EEOC (1937), 81 L.Ed. 278 the Court & Manufacturing Company, incorporated peaceable assem- (9th Cir.1988), Stormans, affirmed so, bly. doing the Court cited to Git- Selecky, Inc. low, Cir. and noted that peacea- “[t]he 2009). Stormans, Townley In and the assembly right cognate ble is a those of speech for-profit corpora- free held press equally and free is Ninth Circuit assert the free claims of whose tions can exercise shareholders are directors entirely their owners. made up members of the Stor- Id. at family.” mans 1120. As in Town- closely- Townley, plaintiff In was a ley, it to decide “deeline[d] whether a for- own- manufacturing company held whose profit corporation can assert rights its own requiring] a “covenant with ers made God under the Free Exercise in- Clause and Gospel them share the with all of their stead the rights examine[d] issue employees.” Townley, 859 F.2d corporate those of the owners.” Id. at plaintiff sought Townley, corporation, 1119. The court concluded that the exemption, grounds, phar- an on free exercise macy was “an extension from a of Title the Civil of the beliefs of provision VII of required Act that Rights it to accommo- members of the family, Stormans and that objec- employees asserting religious date beliefs of Stormans family are the attending tions to mandato- company’s beliefs of the phármacy.” Id. at 1120. ry Although devotional services. the Because pharmacy did present “not plaintiff urged the “court to that it is hold ány rights free exercise of its own differ- entitled to invoke the Exercise Free ent greater from or than its owners’ behalf,” its own Clause on the Ninth Cir- rights,” held, the Ninth Circuit as it had cuit deemed it “unnecessary to address the Townley, that the company “standing had corpo- abstract issue whether a for profit' to assert the free rights exercise of its rights ration has under the Exercise Free owners.” Id. independent Clause of those of its share- Appellants argue and officers.” holders Id. at 619-20. permitted to assert the free exercise Rather, that, “Townley the court concluded Hahns, owners, claims of the its under the merely through instrument Toimley/Stormans “passed through” theo Townley which Mr. and Mrs. their express ry. carefully After considering the Ninth religious beliefs.” Id. at “Town- 619. As reasoning, Circuit’s we persuaded. are not ley no presents rights of own different adopt We decline greater Townley/Stor from rights,” than its owners’ as we theory, mans believe that rights the Ninth Circuit held that it rests “the assumptions very issue those of erroneous regarding Jaké and Helen Town- ley.” corporate fact, at 620. The nature Id. court then examined form. rights at issue corpora- as those of the Ninth Circuit did not mention certain basic owners, ultimately tion’s concluding legal principles governing the status requirement Title VU’s accom- corporation its relationship with the did Townleys’ modation not violate the free create entity. individuals who and own the rights. exercise Id. at 621. It principle “incorpo fundamental purpose ration’s basic is to create a dis applied The Ninth Circuit subsequently entity, legal legal tinct rights, Townley’s reasoning There, in Stormans. obli: gations, powers, privileges different pharmacy brought a Free Exercise those of natural who individuals challenge to regulation Clause a state re- corporation. created” the Cedric Kushner B, quiring dispense emergen- it to Plan Promotions, v. King, 533 Stormans, Ltd. cy contraceptive drug. 121 150 L.Ed.2d 198

F.3d at 1117. In analyzing whether (2001). “passed through” doctrine had pharmacy standing to assert free owners, acknowledge fails to incorporating of its court business, emphasized pharmacy was a Hahns themselves cre “fourth-generation, family-owned business legal entity ated a distinct legally property from come the owner of all the responsibilities and

distinct Hahns, corporation. of the A.2d at corporation.” Wiley, the owners as Wiley, family v. 379 Pa. Corp. incorporate Steel The Hahn chose to and Barium (1954) (“It is well A.2d through Conestoga, conduct business Pennsylvania law] advantages [under thereby obtaining both the and established separate a distinct corporation a disadvantages of form. corporate We who own persons of the entity, irrespective simply ignore cannot the distinction be- stock.”). The form corporate offers all its Conestoga tween and the Hahns. We advantages “not the least of which several hold—contrary Townley Stor- return, liability,” but in was limitation exercise claims mans—that free of a up prerog some give must the shareholder “pass company’s through” owners cannot atives, “including legal of direct action corporation. injury primary to him as to redress v. in the business.” Kush Am. stockholder B. Co., 853 F.2d Ins.

States Next, we Conestoga’s consider Cir.1988). Thus, Pennsylvania under RFRA, “[g]ov RFRA claim. Under Conestoga incorporated— law—where substantially shall ernment burden a is owned corporation when “[e]ven even if person’s religion family, corporate form person one results general ap burden from a rule of cor the individual members of the shields (1) plicability is in [unless burden] personal liability.” Kelly poration of a compelling governmental furtherance Williams, Pa.Super. town Co. interest; and the least restrictive (1981). 663, 668 426 A.2d furthering compelling gov means of is distinct from Conestoga Since ernmental interest.” U.S.C. Hahns, actually the Mandate does not 2000bb-l(a)-(b). §§ inquiry As with the anything. All require the Hahns to do Clause, the Free our pre under Exercise complying with the Man responsibility liminary inquiry for-profit, is whether Conestoga “is Conestoga. falls on date corporation secular can assert a claim un firm, family-owned closely-held, [we] RFRA. plain language der the Under the is a natural inclination for suspect there statute, only applies the RFRA a-to companies of such to elide the the owners Id. “person’s religion.” exercise of distinction between themselves and the 2000bb-l(a). § Sebelius, companies they own.” Grote for-profit, Our conclusion that a secular (7th Cir.2013) (Rovner, corporation cannot assert a claim under But, J., dissenting). it is the Free Exercise necessitates Clause provide comply must the funds to with the a for-profit, corpo- conclusion that secular recognize Mandate—not Hahns. We engage ration cannot in the exercise of shareholders of Conesto as the sole Since religion. Conestoga cannot exercise ga, ultimately corporation’s profits will RFRA religion, cannot assert a claim. But, Hahns. owners flow to the “[t]he thus need whether such We not decide corporation, closely-held even a an LLC or “person” is a corporation under RFRA. one, obligation respect have an the cor form, pain losing porate benefits V. they form should fail to do so.” of that Id. J., Finally, consider whether (Rovner, we “The dissenting).

at 858 fact Hahns, Conestoga, owners of have of the stock person that one owns all does Free him and one viable Exercise Clause RFRA corporation not make thereby be- on their For the same person, the same nor does he claims own. rea- we concluded that the Hahns’ First sons that Amendment to Constitution.” 2000bb(a). Thus, § “pass through” Conestoga, cannot claims U.S.C. our decision we that the Hahns not have viable here is in no way hold do intended to marginalize not impose any The Mandate does Hahns’ claims. commitment to the Mennonite Rather, requirements on the Hahns. com faith. accept sincerely We Hahns on pliance placed squarely Conestoga. that the believe of a termination fertilized embryo If fails to with the Man comply constitutes an “intrinsic evil and a date, fines, penalties including against see 26 sin God which they to are held — (cid:127) ¶ 4980D, enforcement, § accountable,” 30), U.S.C. and civil see (Compl. and that § brought 1132—would be be a pay U.S.C. would sin to for or to contribute against Conestoga, not Hahns. As the use contraceptives which may have corpo Hahns have decided to utilize the a simply such result. We conclude that form, they freely recognized rate “move be law long cannot the distinction corporate tween and status individual to between the a corporation owners gain advantages avoid the corporation disad A holding itself. to the vantages respective contrary forms.” for-profit Pot a corporation can —that Morin, (8th engage in religious exercise—would evis- thoff Cir.2001) 1384). Kush, (quoting 853 F.2d at principié cerate fundamental a Thus, corporation we conclude that the Hahns are not is a legally entity distinct likely to succeed on their free exercise and its owners.

RFRA claims. JORDAN, Judge, dissenting. Circuit

VI. Having previously dissented from the Appellants As have failed to show that stay of a pending appeal denial in this case, likely they are to succeed the merits of I now have a second opportunity their Free Exercise Clause and RFRA government’s consider the violation of the claims, we need not whether Appel- decide of Conestoga freedoms Wood they lants have shown that will suffer ir- Specialties Corporation (“Conestoga”) and harm, owners, Hahns, reparable granting preliminary family a of devout greater relief will not result in even harm Mennonite who Christians believe in the Government, the public sanctity of human life. The Hahns do not preliminary interest favors the relief pay want to be forced people other Co., injunction. NutraSweet obtain contraceptives and sterilization (“A plaintiffs services, at 153 failure to establish particularly drugs known as (or any prelimi- element its favor renders B” “morning pill”) “Plan after injunction (or nary inappropriate.”). There- “Ella” after pill”), “week which fore, will we affirm District Court’s they view as chemical killers of actual lives denying Appellants’ order motion for a being. Sadly, the outcome for the preliminary injunction. Hahns and their business is the same this as it last they

time was the time were colleagues, My govern- before us. at the recognize impor- We the fundamental willing urging, say ment’s that the religion. tance of free exercise As Hahns’ choice operate business as stated, Congress the RFRA passing corporation carries it the conse- restoring the interest compelling test quence that their of conscience are laws that substantially religion, burden forfeit. Constitution, “the framers of the recogniz- ing religion deeply free unaliena- That disappointing ruling rests right, ble protection cramped understanding secured its and confused manufac- Pennsylvania corporation preserved by Con- religious rights 381.) at (Maj. Op. tures wood cabinets. and the Constitution. action

gressional They The Hahns are hands-on owners. us takes down a rabbit government turn a try their business and manage rights are determined religious where hole help Conestoga’s 950 profit, with the code, non-profit corpora- by the tax It employees. undisputed full-time is religious sentiments express able to tions entirely to their Hahns are committed and their for-profit corporations while faith, of their aspects which influences all are that business is business owners told bound, District They lives. feel as the Meanwhile, up and faith is irrelevant. observed, operate Conestoga “to Court surface, try live lives people where and religious with their beliefs accordance of divi- integrity purpose, and kind Spe- moral Wood principles.” as it is. I do truly sounds hollow sion Sebelius, Corp. v. cialties or my colleagues the District not believe (E.D.Pa.2013). 394, 402 One manifestation we review- judge opinion whose of that commitment is the “Statement least, in the but the ing are ill-motivated adopted by Human Sanctity of Life” reasoning genu- is outcome their shared Board of on October Conestoga’s Directors one need not have looked inely tragic, and proclaiming gallery during first of the past the row Family human Hahn believes that [t]he argument appeal, of this where oral (at begins conception point life at listening intently, were and Hahns seated unite) sperm egg where an and and suffering occasioned to see real human gift it is a sacred from God God ei- by government’s determination to human life. terminate bury religious ther make the Hahns convic- against Therefore it is our moral gets or while their business scruples watch tion to be involved the termination of So, did the last time this case buried. as I suicide, abortion, through life eu- human us, respectfully was before I dissent. murder, thanasia, any or acts that other of human Background taking involve the deliberate I. life. Hahn family Five members of the —Nor- Id. at 403 n. 5. man,. Elizabeth, Lemar, Anthony, Norman percent Conestoga,

and Kevin—own 100 fa- Accordingly, the Hahns believe that nearly fifty years espe- which founded the use of cilitating contraceptives, Norman ovum,1 which, by cially destroy ago Majority, as noted ones that a fertilized RU-486”). particularly drug Being 1. Their aimed tion to assist concern seems forced (see contraceptives conception acquisition after and use that work of abortifacients (See obviously great Ap- (noting concern them. Compl. Am. concern man- at 9 over ("[T]he pellants’ Opening "drugs Br. 10-11 Hahns dated devices that cause the that it would be and immoral already yet believe sinful demise of an conceived but not in, intentionally pay participate for them to embryo, 'emergency such as attached human for, facilitate, (the any support con- or otherwise contraception’ drugs B’ or ‘Plan so called an effect traception with abortifacient ‘morning pill)”)), ap- and the after' concern through coverage they health insurance offer parently along the further increases Conestoga.”).) egg development fertilized con- that the traceptive drug govern- of a or device takes argument, action At oral counsel for (see (discussing place objections to a "theo- id. at 10 ment insisted that "abortifacient" (the term,” drug logical pur- so called "a called ‘ella’ ‘week after’ “for federal law poses, prevents egg pill)), which show can function to kill a device that a fertilized studies uterus,” embryos they implanting have in the like Plan B even after attached to the uterus, Ella, (Oral not an a-mechanism similar to the abor- "is abortifacient.” ulations, their core beliefs. previous is a violation of Hahns’ deci- 32.) ¶ (Am. Conestoga, at the about Compl. employee sions benefits were no direction, provided longer something had previously Hahns’ would coverage effectively that omitted tolerate. rules health insurance Under written ¶ (Am. 3.) Then contraception. Compl. entity called “Institute of Medi- cine,”2 corporations came the Protection and Afforda- like Conestoga Patient must (the “ACA”) reg- purchase employee ble Care Act and related health plans insurance 37:13-37:45.) that, Arg. something anything might religion at There was avoid smack of lecture, telling involving what questions religious in that and not counsel this case of free might highly set the government evidently intended. One aside dom. The would like to questionable language might assertion that "abortifacient” is drain the debate of indi "theological” a and not a scientific medical depth feeling cate of the Hahns have term, surprise which come must as a being about are they what coerced to do. editors dictionaries that of include entries like "Keep dry the conversation as and colorless following: Any "abortifacient [MED] possible," message. as any is the Don’t let agent that induces abortion.” McGraw-Hill thing that like up, sounds "abortion” come Terms, Dictionary Scientific and Technical of weight happily lest the a of word disturb (2003). ignore And 6th ed. one could further corporate bland consideration veils and appears ongoing what to be an debate on not, however, insurance contracts. Like it or drugs technically like whether Ella are aborti- death, big and personal issues—life con (See facients. Amicus Br. of Ass'n of Am. science, devotion, govern role Physicians Surgeons (arguing & at 11 ment, here, liberty play and and the —are pregnancy "the low rate for who take women government’s downplay effort to the stakes is days sug- ella four or five after intercourse does, however, help. highlight of no It gests drug that the must have 'abortifa- continuing importance of the First Amend quality”); cient’ ka, D.J. & J.G. Harrison Mitro- ment, effort, forlorn, entirely which "is an not Reality: Defining The Potential Role of interpose prejudices a bulwark between the Impact Assessing Pharmacists in Pro- official, any legislator judge or and the gesterone Receptor Misopros- Modulators and stirrings spirit.” Townley of the EEOC v. Health, Reproductive tol in 45 Annals Pharma- Co., Eng’g Mfg. & (Jan. 2011) (cited cotherapy in Ass'n 1988) J., (Noonan, dissenting). Cir. Physicians Surgeons & Am. et al. Amicus government person- 2. To attribute the rules to that, n.15) (concluding Br. at 10 data, based on unduly generous. Majority nel As the reasonably expected "it can that the (see 381), obliquely Maj. Op. observes ulipristal dose [FDA-approved] will [Ella] question product rules in here are not the early pregnancy have an effect abortive debate, any legislative represen- with elected humans”).) Though objections the Hahns' considering political tatives sensitivities may contraception zy- be more as intense a telling and constitutional ramifications of de- gote point implants, matures and of this vout to fund the Mennonites destruction of case, all, among contending is not after who they They what to be believe human lives. doctors and scientists be correct about are not even the result of work within an abortion-inducing qualities Ella or oth- agency administrative of the United States. government drugs er that the wants to make They assign- the result instead of the ACA buy employ- Hahns and business for ing regulatory authority to a subunit through coverage. ees forced insurance Department of Health and Human Services egg, being upon by Whether a fertilized acted ("HHS”) device, as the Health known Resources drug implantation is aborted after Administration, 300gg- § Services 42 U.S.C. pertinent implanted or is never at all is 13(a)(4), drafting in turn turned the which that a Hahns' belief human life comes into (See Maj. over to the Institute Medicine. being conception therefore destruc- 381.) Op. Majority not do is entity What does taking tion of a of that is the human case, identify Institute of is. It what the Medicine point life. That belief of this govern- government agency is not an of the United States position say any- is in no ment, public entity. thing any or of other It is a meaningful perspec- about the Hahns’ private according begins. organization tive on when life But counsel’s com- website, argument say during something ment "works outside of does meaningful government's provide about the desire to advice to unbiased authoritative ruinous fines. That or to incur and victions Food coverage “[a]ll that include (“FDA”) choice, say, violates both they Hobson’s approved ] [ Administration Drug Religious methods, Amendment and proce- the First sterilization contraceptive Act Restoration and counsel- Freedom education dures, patient (“RFRA”), § I con- 2000bb-l. emergency U.S.C. so-called ing” including — Ella—“for Plan B and agree. as such traceptives capacity, reproductive all women of Review II. Standard Fed.Reg. provider.” prescribed 2012) (alterations (Feb. 15, injunctive re- preliminary qualify To “(1) (internal marks omit- quotation lief, must demonstrate original) litigant ted). merits; has been dubbed This is what on the likelihood of success (the “Mandate”), mandate” if harm the “contraception irreparable it will suffer those, (3) like exception denied; pre- no granting and it brooks that injunction is support- believe that who Appellants, great- liminary not result even relief will contraceptives is certain use of ing the nonmoving party; er harm to the contrary to reprehensible morally such relief.” public interest favors that the fail to have If the Hahns Pharm., God’s word.3 Corp., Inc. v. Andrx 369 F.3d Kos regula- offending Conestoga Cir.2004). submit (3d review the “We to a subject will be tions, company for an injunction a preliminary denial of or fíne —that penalty tax”—a “regulatory law, discretion, an error of or a abuse $95,000 day and per to about will amount in the consideration of clear mistake business and destroy the rapidly will is a “any determination proof,” and (See Maj. Op. at it.4 go that with jobs injunc- an to the issuance of prerequisite “Conestoga is current- (noting that 381-82 standard according reviewed to the tion is Mandate”).) with the ly complying particular determina- applicable to that (alterations tion.” Id. quota- and internal argue Hahns now Conestoga and the omitted). therefore “exer- them, marks We day by tion forcing Mandate is that the over the district plenary con- cise review disobey day, to either pliant companies per-day penalty $100 ato public.” See About makers and the decision "any provide the mandated IOM, failure” http://www.iom.edu/About-IOM.aspx coverage respect individual 2013). "with to each (last self-serving July That visited failure relates.” Id. whom such qualifications will not be of its declaration of “ 4980D(b)(/). Presumably, ‘individual’ § wonder how a to those who much comfort individual insured” the com- means each private organization, not answerable Stores, Sebelius, Lobby Hobby pany, dictating regulations up public, ended has WL 723 F.3d Ap- overrides the insists that the Cir.2013) (en banc), including at *5 religious lib- pellants’ constitutional Regardless, family employees' members. erty. dead, surely would dead is $95,000 weight rapid death under die exceptions, howev- plenty of other 3. There are higher even per-day fines as it would under er, See Part will later. as I discuss infra fines. III.A.2.b.i. alternative, Conestoga presumably In the 4980D(a), drop employee health insurance alto- could According § ”[t]here to 26 U.S.C. gether, face a reduced fine group and it would then health any ... a tax failure of $2,000 employee per year per full-time chapter 100 requirements plan to meet the million). (totaling 26 U.S.C. $1.9 (relating plan requirements).” group health op- $95,000 party § 4980H. Neither has briefed penalty takes The estimate tion, conse- and it is unclear what additional Conestoga’s employees. account action, might in- quences follow from such to much penalty could amount The actual wages, more, pressure etc. cluding upward subjects noncom- given that the statute and its “a less applica- rigorous court’s conclusions of law standard” for grant- ” (internal ing injunctive law Id. of preliminary tion of to the facts.... relief than omitted). Highly rele- quotation marks the standard in this Circuit. Conestoga case, appeals Specialties this “a must Corp., vant to court Wood 917 F.Supp.2d at proceeded if the district 403-04. More specifically, reverse court the Court said on the basis of an view of the those “applied ‘sliding erroneous decisions (internal quotation approach,’ law.” Id. applicable whereby unusually scale omitted). strong marks one showing of factor lessens plaintiffs burden in demonstrating a dif- Majority gives shrift to the short ferent factor.”5 It Id. then contrasted over the of review that dispute standard approach with what it characterized emerged during appeal the earlier this as this Court’s approach, saying, “the My colleagues simply case. say “[a] Third ... ‘sliding Circuit has no such any plaintiffs failure to establish element standard, scale’ and Plaintiffs must show injunc- favor renders a preliminary all four factors favor preliminary re- (Maj. inappropriate.” Op. tion at 382 Majority lief.” Id. The hardly mentions (quoting NutraSweet Vit-Mar En- Co. District Court’s mistaken belief that (3d ters., Inc., Cir.1999)) daunting our standard is more than the (alteration (internal in original) quotation employed by courts, standard other nor omitted)). true, may marks be but it That the District failed to apply to address problem fails the arose binding precedent which we have the District erroneous appli- Court’s adopted equivalent functional the a slid- of a rigid cation more than our standard ing scale standard. requires. law explaining away case the the It country numerous decisions around is true that have not we used the label “sliding that have decided the scale” to describe our standard for enjoined be preliminarily preliminary injunctions, should from en- as numerous other forcing Mandate, the Court claimed appeals circuit courts of have.6 But we that those other were the said “in decisions result have a situation where fac- 12-3841, Sebelius, cluding equities tip 5. See Korte v. 2012 WL No. "the balance of 6757353, (7th 28, 2012) (not- strongly injunctive at *2 Cir. Dec. in favor of relief in this ing tips more questions ‘‘[t]he the balance harms case and that have Plaintiffs raised injunction, lighter of an in favor the bur- concerning their likelihood of success on the party seeking injunction on the den merits that are so serious and difficult as to ultimately prevail,” it will investigation”); demonstrate call Tyn- for more deliberate granting injunction pending Publishers, preliminary Sebelius, dale House 904 Sebelius, 850, appeal); 106, v. 708 F.3d (D.D.C.2012) Grote 853 F.Supp.2d (applying a 113 (7th Cir.2013) (adopting reasoning which, n. 2 sliding scale standard the mov- "[i]f applying "sliding Korte the same scale” unusually strong showing ant makes an standard); Sebelius, Monaghan factors, v. 916 necessarily one of then does not 802, (E.D.Mich.2012) ("Courts 807 strong showing have to make as a on another may grant preliminary injunction ... a even (alteration (internal original) factor” quota- plaintiff strong where the show a fails to omitted)). tion marks probability substantial of success on the mer- its, ques- explicitly where he at a adopted but least shows serious 6. At least six circuits have going "sliding irreparable approach evaluating tions merits scale” a mo- outweighs any injunction. decidedly poten- preliminary harm which for a tion See McCor- Hiedeman, 1004, injunction tial harm to the 7 if mack v. 694 F.3d 1016 defendant n. issued.”); (9th Cir.2012) ("[T]he Dep't 'sliding v. approach Am. Co. U.S. scale’ Pulverizer Servs., & preliminary injunctions Health Human No. remains valid: A (W.D.Mo. 2012) preliminary injunction appropriate WL a at *5 Dec. when (applying sliding plaintiff questions scale standard and con- that serious demonstrates harm, strength and the interests of third final decision irreparable tors of one plaintiffs showing respect strongly considerations public parties respect injunction an affect what will suffice with moving party, favor Jackson, v. 833 F.2d though plain even another.” Marxe appropriate might be (3d Cir.1987). again, And we strong as a likeli not demonstrate tiffs did said, a ‘deli “proper judgment have entails general as would ultimate success hood of Lilly all Eli balancing’ cate elements.” Ass’n W. ly required.” Constructors Inc., (3d Labs., & Premo F.2d Cir. Co. v. Pharm. Kreps, Pa. v. Cir.1980) (3d 1978). occasion, 120, 136 (quoting Kreps, F.2d we observed On another 815) (internal injunc quotation marks preliminary four F.2d [the that “[a]ll omitted).7 not precedents If those are weighed together factors often tion] preliminary injunction degree of like- raised with the going to the merits were and the bal merits”). tips sharply plaintiff's on the hardships ance of lihood success (alteration quotation and internal favor.” noted, supra 7. As six circuits have see note omitted)); marks Davis Pension Benefit "sliding used label scale” to describe their (D.C.Cir. Corp., 1291-92 571 F.3d Guar. 2009) approach reviewing prelimi requests ("The typically factors have been four nary injunctions. remaining Almost all of the ‘sliding If scale.’ the movant evaluated have, us, approach adopted like circuits that, strong unusually showing makes an on one name, if not in mirrors so-called factors, necessarily not have then it does sliding man, approach. v. Sher scale See Lankford strong showing make as on another fac to tor.”); Cir.2006) ("No (8th Int’l, Madigan, F.3d Cavel Inc. " single dispositive, factor is district Cir.2007) (endorsing ‘sliding court balance all factors to determine must approach” pursuant "if scale’ which issue."); injunction whether the Doe v. should though necessarily great appeal has some (6th Cir.1997) Sundquist, merit, showing [great] then of harm of ... ("We plaintiff's mindful that when a are even magnitude justify granting the of ... would probability of success on merits of a claim the injunction appeal provided pending ... an high, injunction may very preliminary a not the would not that defendant suffer substan plaintiff in appropriate be if the serious granting injunc harm from the of the tial tion”); injunc danger irreparable’ harm an of absent Corp. Litig., In re Antitrust Microsoft degree we have that the tion. Thus observed Cir.2003) ("In (4th apply 333 F.3d of likelihood of success that need be shown to test, irreparable ing the harm th[e] four-factor support preliminary injunction varies in a plaintiff the the harm to the defendant degree injury plaintiff versely with the the of important Empha are the two most factors. suffer.”); Distribs., might Beverage Roso-Lino first sis on the balance of these two factors N.Y., Inc., Bottling Inc. Co. v. Coca-Cola sliding in a that less of results scale demands of (2d 1984) curiam) (per 749 F.2d Cir. showing of the a of likelihood success on ("In preliminary injunction our circuit a will weighs hardships merits when the balance of (a) showing be when there of issued is a strongly plaintiff, the and vice favor of (b) (alteration irreparable harm and either likelihood quotation and internal versa.” (2) sufficiently of success on the omitted)); merits Gately marks v. Commonwealth of Massachusetts, going (1st questions the merits to serious make 2 F.3d Cir. 1993) ground litigation for a them a fair bal (noting general principle "the that ir decidedly hardships tipping reparable subject sliding a ance of toward harm is scale party requesting preliminary relief.” analysis, showing irreparable such that the (internal omitted)); required quotation plaintiff harm marks Otero of a increases presence against ... which a Sav. & Loan Ass'n v. Fed. Reserve Bank factors cut Mo., (10th authority equitable City, court's traditional issue Kansas relief”); Ass’n, 1981) ("The Dep’t adopted Fla. Cir. Tenth has Med. Circuit Health, Welfare, Educ. & 601 F.2d 203 n. Second Circuit’s liberal definition 1979) (when evaluating ‘probability requirement. Cir. a motion of success’ When requirements preliminary injunction, sliding prelimi a "a for a scale other three satisfied, balancing nary employed, hardships injunction ordinarily can be are will ques- enough plaintiff raised associated with the issuance or denial of a be that III. Discussion expression of a application sliding scale, strength of allowing showing The Majority, Court, like the District only one four evaluates of the preliminary compensate one factor to for a weaker on injunction factors: the likelihood of the another, positive showing still I but Hahns’ and Conestoga’s success on the what confess I do not know to make of merits.9 Holding “Appellants ignored them. The District the im- -Court they have failed to likely show that are Marxe, and Eli Kreps, Lilly, de- port on the succeed merits their Free Exer- spite saying party our that a can succeed claims,” cise Clause and RFRA Majori- if the gaining injunctive relief threat- ty not Appellants “[does] decide whether they have shown that suffer irrepara- will particularly great ened harm is and offsets harm, granting preliminary ble relief showing “likelihood success” that is will result in even harm greater to the ordinarily than might required. less Government, public [or] interest erred, and we say Court thus should favors the preliminary relief of a injunc- so. 888-89.) (Maj. Op. My tion.” col- leagues thereby addressing, avoid let alone which Majority, tacitly Unlike the en- weighing, the additional factors. I believe application dorses the District Court’s they wrong about likelihood of unduly incorrect restrictive stan- success both the Hahns and Conesto- review, apply dard of I would standard with, ga should be credited and I am fur- mandated our own case law and used persuaded ther remaining three factors, vast majority of our sister particularly showing circuits.8 irrepa- serious, going tions essary showing. Hobby so Lobby, merits substan- tial, doubtful, (”[W]e difficult and as to make them a WL at *8 need ground litigation fair thus for more not resolve whether this relaxed standard (internal investigation.” quotation here, deliberate apply given would majority that a omitted)). marks Lobby Hobby court holds that and Mardel have satisfied the prong likelihood-of-success Only appears rejected one to have circuit standard.”). under the traditional balancing outright. approach The Eleventh Circuit sliding “has not scale recognized” government has not asserted that the approach “sufficiently where there are seri Act, Anti-Injunction precludes judicial which questions ous going to the merits make [that] seeking consideration of suits to ”restrain[] ground litigation them a fair for and [where any the assessment or of collection [federal] hardships there tipping is] a balance of decid tax,” 7421(a), applies § 26 U.S.C. to this case. edly requesting party preliminary toward the result, argument As a that line of is waived. relief.” Co. Snook v. Trust Ga. Bank of of 1157, Hobby Lobby, at 111 F.3d 2013 WL Savannah, 480, N.A., (11th 483 909 F.2d n. 3 3216103, (Gorsuch, J., concurring) at *35 (internal 1990) omitted). Cir. quotation marks (“[A] waivable ... all defense the [Anti- rate, Injunction provides.”). anyAt I Act] I8. have correct discussed the standard of ruling would hold with banc the en of the length only emphasize review at Appeals United States Court of for the Tenth heavy irreparable view particularly and of Anti-Injunction Circuit that the Act Conestoga does not harm that the Hahns and are now 1127, apply in a case See id. at suffering like this. 2013 to- will continue suffer as a 3216103, ("[The for-profit corporate WL holding, at *7 Majority’s result of the see Part infra III.B, appellants] seeking enjoin are clearly requirements this case the col- meets any lection preliminary for a of taxes or the execution of injunction. But even IRS under regulation; they seeking enjoin by the stricter applied standard the District Court, hold, enforcement, method, I by would still for the I reasons whatever of one dissent, provide regulation they in the of this HHS claim remainder violates their rights.”). the Hahns and have made the nec- RFRA and their owners seek corporations overwhelmingly profit in favor harm, weigh rabie the Mandate. Cones ing protection from explain, relief, endeavor I will as of Corp., toga Specialties Wood So raost of those F.Supp.2d at 404-05. fai’> on the Merit Success Likelihood A. of injunc preliminary reached the cases have majority a clear stage only, tion against in many temporary filed is one courts has determined This case join I junctive relief is order.10 months for- in recent preliminary injunction); posed Dep’t motion Health & Hu v. U.S. 10. See Gilardi 1:13-cv-00104-EGS, Dep’t Human Servs., Lindsay Health & slip op. v. U.S. No. man Servs., 13-C-1210, (N.D.Ill. 29, 2013) op. slip at (D.C.Cir. (granting No. Mar. at 1 20, 2013) injunction grant (preliminary ap Mar. injunction pending motion court’s own "agreement parties”); Mona ed with denying plaintiffs’ motion on peal after first 794, 808, Sebelius, Med., 21, 2013); ghan at v. Annex Inc. v. Sebeli March us, 1014026, (E.D.Mich.2013) 13-1118, WL at *11 op. WL slip at No. 1, 2013) injunction (8th (granting (granting preliminary because Feb. Cir. Sebelius, satisfy its Government has failed to appeal); injunction pending ”[t]he Grote Cir.2013) (same); (7th showing were nar that its actions burden interest,” Korte, compelling (granting rowly tailored to serve a *2 mo at 2012 WL at plaintiffs therefore "established least injunction pending appeal because tion for succeeding merits on the a reason some likelihood "have established both appellants claim”); Mfg. Co. of their RFRA Sioux success on the merits and likelihood of able Chief Sebelius, 13-0036, (W.D.Mo. harm, slip op. No. the balance irreparable [because] 28, 2013) favor”); (granting unopposed motion v. U.S. Feb. tips in their O’Brien of harms Servs., injunction); preliminary Triune Health No. 12- Dep’t Health & Human 28, 2012) Grp., Dep’t Health & Human Inc. v. U.S. slip op. Cir. Nov. (N.D.Ill. Servs., slip op. stay pend No. "Appellants’ motion for (granting 3, 2013) comment); prelimi (granting motion for Hob Jan. ing appeal,” without further Stores, Sebelius, Sharpe Holdings, nary injunction); Inc. v. No. civ by Lobby Servs., 01000-HE, Dep’t & No. Health Human slip op. at 2013 WL 3869832 12-CV-92-DDN, 19, 2013) (W.D.Okla. at *7 (enjoining govern 2: 2012 WL July enforce, 31, 2012) (E.D.Mo. (holding "plain any apply or Dec. ment “from effort to injunctive main entitled to relief that plaintiffs, requirements im tiffs are the substantive 3(a)(4) important 300gg-l quo until the rele § and at tains the status posed in 42 U.S.C. heard”); case, fully penalties issues have been more or the related issue this vant Pulverizer, Sebelius, thereto”); 2012 WL *5 Elec. Co. v. No. Am. Beckwith (granting preliminary injunction "the because 8:13-cv-0648,-F.Supp.2d-,-, (M.D.Fla. 2013) equities tip strongly in favor of at *19 June balance WL injunctive relief in this case and (holding religious rights [because] are "not relin concerning questions engage enterprise Plaintiffs have raised quished efforts to free form,” granting success on the merits that corporate mo their likelihood of under the injunction); and difficult as to call for more preliminary Coll. are so serious tion for Geneva Sebelius, investigation”); Tyndale, 2:12-cv-00207,-F.Supp.2d deliberate v. -, No. -, 3071481, (granting preliminary F.Supp.2d in WL at *12 at 129 2013 18,'2013) (W.D.Pa. corporation and (granting junction publishing its June motion for strong president they had "shown a preliminary injunction); v. because Hartenbower U.S. Servs., the merits of their Dep’t likelihood of success on Health & Human No. 1:13— claim,” (N.D.Ill. 18, 2013) prelimi (granting and because the other Apr. RFRA CV-02253 granting injunc nary injunction unopposed preliminary factors favored motion for Sebelius, Sebelius, motion); tion); (D.Minn. F.Supp.2d Legatus 901 v. Hall v. No. 13-0295 980, 2, 2013) (E.D.Mich.2012) (granting prelimi (granting unopposed 999 Apr. motion for for-profit, family-owned injunction); nary injunction & Blank preliminary Tonn Constr., Sebelius, holding operated corporation and v. and LLC No. 1:12-CV-325 1, (N.D.Ind. 2013) delaying implementation Apr. (granting unopposed harm ”[t]he be deemed consti preliminary injunction); of a statute that later for Bick motion Sebelius, yield presented here tutional must risk Holding, v. No. 4:13-cv-00462- Inc. 1, 2013) (E.D.Mo. substantially infringing (granting unop- the sincere Apr. AGF case, consensus, prima certainty note also recent en a facie not a that he banc decision of United States Court she will Highmark, or win.” Inc. v. holding Tenth Appeals Plan, for the Circuit Inc., 160, Health UPMC for-profit companies two “established (3d Cir.2001). had of suc “[Likelihood likely on their they are to succeed [that] plaintiff cess” means a has “a reason RFRA claim” the Mandate chance, probability, able or winning.” irreparable harm.11 threatened them Consultants, Singer Mgmt. Inc. v. Mil Stores, Sebelius, Hobby Lobby Inc. v. 223, (3d Cir.2011) (en gram, 650 F.3d 1114, 1144-45, 3216103, 2013 WL at banc). It not likely “does mean more than (10th (en 2013) banc). 27, *24 June Cir. here, not.”12 Id. In the sense pertinent the term qual To demonstrate a likelihood success “likelihood” embodies “[t]he merits, “plaintiff only prove ity success,” on the of offering prospect need Sebelius, beliefs”); order, persuasive Newland v. In value. its the court ac- 1287, (D.Colo.2012) decisions,” F.Supp.2d knowledged “conflicting but it de- (granting injunction, holding preliminary injunctive nied relief because the district equities tip strongly balance of the ”[t]he opin- court in that issued case a "reasoned case”). injunctive favor of relief in this But ion” Supreme "the Court[ because ] [had] Sebelius, 13-1677, Foods, see Eden Inc. v. No. recently] injunction pending ... an deni[ed] 28, 2013) (6th slip op. (denying at 2 Cir. June Autocam, appeal Lobby." Hobby 12- No. injunction appeal stating pending that it 2673, Stores, slip op. (citing Lobby Hobby at persuaded, stage pro at "not this Sebelius,-U.S.-, 641, ceedings, for-profit corporation that a J., (Sotomayor, L.Ed.2d 448 RFRA” under the and that burden to Justice)). Supreme opinion Circuit The attenuated”); company’s "is owner too Auto was an Autocam court referred to in- Sebelius, 12-2673, Corp. slip op. cam v. No. by Sotomayor, chambers decision Justice act- 2012) (denying motion Cir. Dec. for alone, ing denying plaintiffs’ motion for injunction appeal); Mgmt. pending Mersino injunction pending appellate review. Hob- Sebelius, 13-cv-11296, slip op. Co. v. No. Stores, by Lobby She denied 641. (E.D.Mich. 11, 2013) July 2013 WL 3546702 particular the motion under the for standard (denying injunction); preliminary for motion extraordinary issuance of an the Su- writ Sebelius, Armstrong v. 13-CV-00563 No. Court, preme signifi- id. which differs (D.Colo. 2013) May (denying motion for cantly evaluating standard our injunction); preliminary MK Chambers Co. v. preliminary injunction. motion for a Under Servs., Dep’t & No. 13- Health Human standard, demanding that more the entitle- (E.D.Mich. WL at *7 " ” 'indisputably ment to relief must be clear.' 3, 2013) Apr. (denying request tempo for a --, (quoting Rodrigues, Id. -U.S. Lux Sebelius, order); rary restraining Briscoe (2010) (Rob- 177 L.Ed.2d 1045 1116-17, No. erts, C.J., Justice)). as Circuit Autocam (D.Colo. 2013 WL at *5 Feb. opinion court’s on her is therefore reliance 2013) (relying recently Hobby overturned misplaced, decision is otherwise de- Lobby deny temporary decisions to restrain explanation. void of order). ing cases, those Fourth addition to Cir- Hobby Lobby 11. The court remanded the case recently challenge cuit declined to rule on regarding remaining for a determination contraception Mandate in a case re- injunction preliminary two Id. at factors. Court, manded to it because 1146-47. plaintiffs challenge regula- the tions, these "did any argument or make related to con- Indeed, necessary showing because abortifacients, traception the or in district injunction certainty, court, falls well below we ..., appeal in their first or in their ruling” Univ., ‘probability’ have held "this is that Supreme Liberty Court briefs.” Inc. v. - Lew, 10-2347, 58, party "pre- insufficient to that a has establish slip op. No. at 11, -(4th 2013). solely being July based on its awarded a vailed]” Cir. preliminary injunction. Milgram, 650 F.3d at denying prelimi- The Sixth Circuit's order nary injunctive relief in is of little 229. Autocam 398 by English non-profit” distinction invented Oxford

showing promise. some and government, language logic and ed., I, (compact at Dictionary, 1625 Vol. justify jurisprudence Supreme of Court added). 1986) Appellants The (emphasis , corporations recognizing for-profit of suc- requisite prospect shown the have religious entitled to Conestoga like cess. liberty. RFRA Right Assert Conestoga’s is Majority declares that there no Amendment Claims and First of free “history providing courts exercise (Maj. Op. protection corporations.” at Majority begins and begin where I “ 384.) it, ‘[rjeligious my colleagues As see ends, Conestoga’s of claim the issue with minds shape belief takes within the and may liberty.13 This be religious individuals, protection and hearts is and, standing, question a thought as rights uniquely more human one inway couched that it not though was ” (id. at 384- provided by Constitution’ us, it has before briefing argument or Conestoga Specialties (quoting Wood such other courts. been addressed 408)), religion at Corp., F.Supp.2d so 1125-26, Hobby Lobby, 723 F.3d at E.g., inherently right” be “an ‘human’ must *6; 3216103, Tyndale House 2013 WL be corporation cannot exercised like Sebelius, Publishers, Inc. 385). (id. Conestoga reasoning That (D.D.C.2012); Le 114-19 F.Supp.2d First, fails for several reasons. Sebelius, 980, 987- F.Supp.2d gatus depends extent it on the assertion that (E.D.Mich.2012). However it entities, including corporations, collective framed, assertion and government’s rights, plainly no is religious have Conestoga Majority’s conclusion wrong, Supreme as numerous deci- any right free exercise lacks recognized corpora- have sions religion is flawed because the Constitu the free enjoy tions to reli- See, “for-profit gion.14 e.g., makes the versus Church the Lukumi tion nowhere ("It addressing Majority’s might corpora- part) am reason- also be added that 13. As I consciences, beliefs, begin point no ing, this than tions have no no feel- I rather course, desires.”)).) statutory question ings, thoughts, of whether no no Of below, explain corporations picket, Capi- As I not march on "person” under RFRA. see do or Hill, note I believe it is. canvas tol or door-to-door moral infra either, Majority would causes but not corporations have claim that do not First Majority important thinks it that cor- 14. The rights speech peti- Amendment to free qualities porations anthropomorphic lack the Corporations government. tion the have '[t]hey of individual devotion—" do they those not because have arms and pray, worship, observe sacraments or not take legs people form separate but because who and religiously other actions —motivated do, operate apart and direction of them we are concerned in intention ” people, they operate (Maj. Op. this case with even when their individual actors.’ at 385 Stores, Sebelius, Lobby through (quoting Hobby particular form association (W.D.Okla.2012), corporation. note 17. called It is infra banc, my perhaps support No. accident that the rev’d en no 27, 2013)); colleagues put corpo- WL forward to that a Cir. June show Hobby body parts (citing Lobby, deprives it of reli- see also id. 723 F.3d at ration's lack of C.J., (Briscoe, gious liberty a district case has *51 court WL reversed, appeals concurring dissenting part) part been a dissent in a court case, can in a Court case. (questioning corporation ‘be- a dissent "whether all”)); argument (citing An three times lieve’ at id. at 385 Unit- lost Citizens record, Comm’n, wrong maybe but necessarily ed v. Fed. for that Election argu- says something about the 175 L.Ed.2d 753 the record J., (Stevens, concurring part dissenting ment.

399 Hialeah, Aye, City gion by v. 508 is unsupported any [also] Babalu Inc. cited 2217, authority.” Sports S.Ct. 124 v. U.S. 113 McClure & Health (1993) Club, (Minn.1985). (recognizing peti- 370 L.Ed.2d N.W.2d fact, corporation congregants as a whose far appears tioner from rejecting religion, proposition and con- practiced for-profit Santería that corporations cluding city may interests, violated have religious liberty ordinances corporation’s Supreme and its members’ free exer- Court has reserved the issue for rights); Corp. Presiding Bishop a later time. Nat’l cise First Bank Bos Cf. Bellotti, 765, 777, v. Latter-day the Church Jesus Christ ton 435 U.S. 98 S.Ct. Amos, 327, 330, (1978) Saints v. L.Ed.2d 707 (declining to 2862, 97 (recog- question L.Ed.2d “address the abstract whether nizing petitioner corporations- a corporation as have the full measure of concerning rights); case free exercise Bob enjoy individuals under States, Amendment”); Amos, Jones Univ. United 461 U.S. First 483 U.S. at n. (Brennan, J., n. L.Ed.2d 157 345 107 S.Ct. 2862 con (1983) (allowing curring two corporations op- judgment) (noting that “[i]t schools but not be also erated could is conceivable some for-profit ac character- purely religious ized as “churches or religious character,” other tivities could have a rights). leaving open institutions” assert free exercise issue of whether for- profit enterprises could have a religious Taking the to be argument somewhat exemption from Title VII the Civil narrower, though it is for-profit —that Nights 1964); Act of id. at corporations that are off from sealed First (O’Connor, J., concurring in the judg liberty Amendment religious still fails. —it ment) (expressly leaving open the same profit There is no reason to that a suppose question). places corporation away motive further what human” The “inherently Majority slips away than oth from own its motives, er sorts of distinction for-profit so the distinction between and non Majority logic draws intrinsic to profit support has no entities when it tries to holding recommend it. It also far too much places Supreme with a citation to the weight supposed precedent. on a lack of Court’s observation that the Free Exercise “ authority admittedly scanty, religious liberty While that Clause in the ‘secure[s] in all probability by any because there has nev individual prohibiting invasions er before been government policy authority.’” (Maj. thereof civil Op. at perceived intruding could be (quoting Abington as reli Sch. Dist. Twp. liberty 203, 223, as gious aggressively Schempp, the Man date, (1963)) so there has little (emphasis been reason to L.Ed.2d 844 omit ted).) And, event, in any really address issue.15 If that out-of-context clause meant, counterpoint there is an Majority argues, obvious as the individuals, Majority’s right there observation: not be was limited to then all law, cold, directly supporting groups just case but the “con would be left in the clusory corporation for-profit assertion that But that corporations. no is mani festly quoted language constitutional to free exercise of reli not what record, Times, press reports (describing are not but York at A1 Jan. would one have to have cut off from all been high-stakes “a clash between' free- uproar media to miss the created the Man- appears dom and health access that care See, Bronner, e.g., date. A Ethan Flood Court”). headed to the Control, Fights Coverage Birth Suits New 400 in- Majority’s say discussion to that the Free Exercise does the

means. Not already in the face of the fly liberty to terpretation religious secures individ- Clause establishing groups that of authority cited That uals. Of course it does. does not surely as rights free exercise people have individuals, in- mean associations does, simply it falters as individual as each cluding corporations, lack free exercise recognize of reason. To matter rights. matter of indi- convictions are a religious corporations I am not suggesting and does not-re- experience cannot vidual enjoy constitutionally all of the same of much reli- fute the collective character do. grounded They as individuals gious belief and observance. not, the Supreme do Court noted in are in opinions and faith this Religious Bellotti, v. First National Bank Boston political pas and opinions akin to respect “[cjertain saying, purely personal guaran- sions, which are held and exercised both corporations ... are unavailable to tees individually collectively. “An individu organizations and other because the histor- speak, worship, and to al’s freedom guarantee ic function of particular has petition government for the redress of limited to protection been of individu- protect not grievances vigorously could be 14, als.” 435 U.S. at 778 n. 98 1407 S.Ct. ed interference the State unless a from (internal omitted); quotation marks see engage freedom in group correlative Shultz, 21, Bankers v. 416 Cal. Ass’n U.S. those ends were not also effort toward (1974) 65-67, 1494, 94 S.Ct. 39 L.Ed.2d 812 Jaycees, guaranteed.” Roberts v. U.S. (declining to corporation extend to a 622, 3244, 609, 82 L.Ed.2d U.S. S.Ct. the same privacy to extent as (1984). just Supreme And as the individuals); States, Wilson United free exercise Court has described the 538, U.S. 31 S.Ct. right, as an “individual” see 55 L.Ed. religion . (1911) 83 S.Ct. Schempp, 374 U.S. (finding privilege thing said previously the same self-incrimination against does not apply to speech, v. New freedom see Gitlow corporations). question in a case like York, “[wjhether this thus becomes or not a par- (1925) freedom (calling L.Ed. guarantee ticular ‘purely personal.’” ]”), speech rightf “fundamental personal Bellotti, 778 n. U.S. at still, notwithstanding that occasional that, turn, “depends 1407. And on the characterization, there are a multitude of nature, history, purpose particu- speech rights free upholding cases provision.” lar constitutional Id. E.g., corporations. Citizens United Fed. Contrary Majority’s conclusion, Comm’n, Election U.S. “nature, nothing there is history, about (recog 175 L.Ed.2d 753 purpose” lim- protection “First nizing that Amendment Quite its it to the opposite; individuals. corporations” listing extends to cases believers have time immemorial effect). Indeed, They sought strength in numbers. lift one specifically “rejected argu Court has and, through another’s faith their com- speech corporations ment that political efforts, bined their capacity increase other associations should treated meet the of their doctrine. The demands differently under First Amendment “congregation” use word for reli- simply because such associations ” groups gious developed for reason. 343, 130 persons.’ ‘natural Id. at S.Ct. 876 Christians, Bellotti, example, may rightly un- (quoting 1407). It nothing thus does to advance the derstand Lord’s statement together or three are gathered Evangelical “where two Lutheran Church & Sch. — name, EEOC, U.S.-, I my 694, 706, in there am in the midst of 18:20, them,” prom- only (2012))); Matt. to be not Maj. L.Ed.2d 650 atOp. but an or- spiritual outpouring ise of also 386 (acknowledging that “First directive. It ganizational speech thus cannot free rights Amendment to apply religious purely said is a corporations,” exercise but declining to “draw right, one that utilized personal just “cannot be conclusion because courts have behalf by any organization, or on of such recognized the free of rights White, corporation.” entities, as a United religious States churches and other 694, 699, necessarily 322 U.S. L.Ed. for-profit, follows that secular (1944). It by organiza- corporations is exercised can exercise Of religion”).) course, the time. tions all view leaves it to govern ment to what qualifies decide as a “reli Wait, says the government response gious organization,” ought which give to reasoning; get away to such don’t carried people pause serious since one of the cen facts; any right religious collective tral of the purposes First Amendment is exercise must be limited to organizations keep government out of the sphere specifically exclusively that are dedi religion entirely. Illinois ex rel. Cf. religious govern ends. cated to As the Bd. McCollum v. Sch. Dist. No. of Educ. it, the Majority religious ment and see more rights are limited than other kinds of (1948) (“[T]he L.Ed. 649 First Amendment rights. First Amendment All can groups premise rests upon the that both religion enjoy expression rights secular free government can best to achieve work organiza but assembly, “religious if lofty aims each is left free from liberty. tions” have a to religious respective other within sphere.”). (See (“[Wjhereas Br. Appellee’s however, First Amendment speech Assuming, freedoms govern- ‘right[s] enjoyed competence association reli ment had the to decide iswho alike,’ gious groups enough and secular the First religious qualify “religious as a ‘gives Free organization,”16 Amendment’s Exercise Clause there is sup- no reason to special religious pose solicitude to the Free guarantee that the Exercise ” organizations.’ (quoting Hosanna-Tabor as limited or as claims wading absolutely into Some those waters be- the strictest tenets of their faiths (3) qualify A protection”; come inevitable. handful of federal statutes Section 702 for exemptions religious corpora- "religious organizations may “a create in- declare their tion, association, institution, losing educational or tention discriminate ... not to without VII); 702”; 2000e-l(a) (Title (4) § society." protection U.S.C. Section “the 12113(d)(1), (2) (similar § organization id. see abo lan- need not enforce an across-the- Act). guage hiring policy only coreligionists." in the Americans with Disabilities board Community In LeBoon v. Lancaster Jewish Id. at 229-30. Ass'n, (3d Cir.2007), Center 503 F.3d 217 we to that rather contrast broad view community whether a examined Jewish cen- organization qualifies whether an for a reli- qualified "religious organization” ter as VII, gious exemption under Title the defini- purposes of Title VII to whether it determine “religious employer” tion of the term exempt from the reli- compliance was notably cramped. Mandate was 45 C.F.R. gious provisions discrimination Title VII's 147.130(a)(l)(iv)(B) (defining "religious § em- test, 702. Under a we "organizationfs] Section multi-factor ployers” as all meet[ ] (1) community quali- determined that the following center criteria: The inculcation of "religious corporation, organization, fied religious purpose organi- as is the of the values institution,” (1) organi- (2) "religious organization because primarily zation. The em- may engage ploys persons who zations secular activities with- share the tenets 702”; forfeiting protection organization. organization out under Section (2) "religious organizations primarily persons need not adhere serves who reli- share the be inter- es of the First Amendment must accepts. Our Constitution Majority 386.) (Maj. religion identically.” Op. at preted free exercise

recognizes the position Majority’s Implicit to other kinds of addition something in may Free be afforded requires it less the Exercise Clause not because expression, Speech than the Free deference, protection it re- less arguably because but least, Clause, and indeed the effect of the very the it stands that is At quires more. wholeheartedly I dis- protec- Majority’s ruling. with other equal footing the on an special with inversion agree of of First Amendment. tions 158, free Massachusetts, historically shown for the 321 U.S. solicitude Prince v. (1944) 438, any And to who 164, religion. 88 L.Ed. 645 (“[I]t any might try happened what has obfuscate be doubted today by “different doesn’t mean saying, the First Article great liberties insured worse,” please courts in this place than the others. note: Circuit given higher can be never position questioned in our and elsewhere have All have basic preferred togeth- rights corporations First are interwoven there Amendment scheme. All Connecticut, er.”); advancing rights, Planned Par- abortion Cantwell v. Casey, L.Ed. Pa. v. 947 F.2d S.Ct. 1213 enthood Se. Cir.1991) (3d (1940) (“[T]he whether (considering of this nation have 705-06 people history, requiring physicians ... a statute to disclose light ordained in the seeking [religious political faith and certain information women these liberties view, are, long essential abortions Amendment in the violated First belief] Parenthood, rights corpora- conduct enlightened opinion on Planned tion), democracy. part part grounds, citizens of a rev’d in on other of these liber- 120 L.Ed.2d 674 The essential characteristic U.S. S.Ct. is, (1992); many types Hi- ties their shield Planned Parenthood Ass’n that under Tex., life, character, Suehs, opinion dalgo Cnty. and belief can (cid:127) (5th Cir.2012) unobstructed.”). . develop (considering wheth- unmolested religious promoting free- er a protected The values state “restriction on dom of the First Amendment elective abortions” violated Planned Par- clauses zealously protected, rights), “have been sometimes enthood’s First Amendment while today’s expense even at interests of denies Amendment ruling other First abortifacients, admittedly importance,” protection social Wis- high opposed to one Yoder, grounded 92 because in reli- opposition consin v. (1972). 1526, L.Ed.2d 15 gious conviction. history In spite pro- place of zealous Given the First Amend- special tection, Majority religious free relegates plays society, ment in our Su- that, status, that, liberty saying in Bellotti preme second-class instructed incorpo- focusing corpora- because Court case law instead of “whether and, Speech Exercise Free tions ‘have’ if rights rated Free First Amendment so, they Clauses into the Fourteenth Amendment’s whether coextensive times, persons,” question Due clause at different “it those of natural “the Process automatically all falls activity does not follow that claus- (cid:127)must be whether” the at issue gious organization. cently pur- promulgated The or- a new which tenets of rule ganization nonprofit organization is a as de- "religious ports to broaden the definition of 6033(a)(1) and section scribed in section employer” to some extent. See 78 F.R. (iii) 6033(a)(3)(A)(i) or of the Internal Reve- 39870-01. amended.”). nue HHS Code of re- uniquely an area First Amendment was human provided by within “the n ” protect.” (Maj. Op. meant U.S. at Constitution’ at 398 (quoting words, operative toga Specialties Corp., 1407. In other Cones Wood 407-08)), First question under the Amendment while is simulta- liberty is an being neously denying religious what is done—whether there to Cones- infringement toga, entity nothing or the exercise of speech more than religion speaking on who is exer- the common vision of five individuals —not Hence, cising religion. political family one who are of one heart and mind faced, it then Bel- about speech context that belief.17 Acknowl- the emphasized edging lota Court “the Hahns’ to “[i]f commitment (id. 389), corporations, hand, here not no faith” speakers were Mennonite at on one could suggest one would the State while on the other if the acting as Hahns speech. their is the proposed having silence It do not even exist and are not their type speech indispensable “uniquely trampled to human rights” decision- on is democracy, making and this is no less more than a little jarring. speech true because the from a comes And what is the for rationale this “I corporation an rather than individual.” Id. you” analysis? can’t see It is that for- here, at S.Ct. 1407. Likewise profit corporations like were

right object religious grounds (Id. 385.) money.” “created to make at It funding reproductive someone else’s is the profit-making character the cor- legitimate choices is no less because the itself, poration, corporate not the form objector is a an corporation rather than Majority decisively treats disquali- as individual. fying Conestoga seeking from the protec- appropriate But even if ignore it were tions of-the First Amendment or RFRA. (See (“We Supreme advice not Court’s and focus id. at 385 will draw the that, person right just rather than conclusion courts asserting because have stake, on the there the free recognized is blindness entities, organization idea that an like and other religious churches closely for-profit, other corporation something necessarily held follows that secular corporations religion:”).) than united voices its individual can exercise irony members. The no That line Majority argument detects treats the between adoption in its District com- profit-motivated Court’s and entities non-profit “ is, shape actually than it ‘[rjeligious brighter ment belief takes much since for- individuals, hearts of profit corporations pursue non-profit goals within minds and protection important and its is one of the more on a basis.18 More for regular dealing closely regarding corporations sig- We are held "Benefit” here with a or "B” 17. corporation, nificantly undermine the narrow view that all and we need not determine corporations for-profit are concerned corpora- with publicly whether or how a traded tion, profit As one maximization alone. academic ownership, widely distributed level, said, society appears a secular "[o]n might religion. endeavor to exercise Those this, giving already recognized to have form day. issues can be left another for customers, investors, yearning em- commonplace corporations It for ployees, and and officers to combine form go have mission and statements credos particular consistent with their businesses beyond profit people maximization. When values and convictions. This evidenced speak "good they corporate citizens” marketplace developments both in the typically referring community support and promulgation legislatures, state such as the involvement, among things. Beyond Corporation’ other and the 'B ‘Benefit statutes Cor- Colombo, corporate poration’ recent law J. developments movement." Ronald however, protects the First Amendment kind Because purposes, present speech religious activity generally, draws majority between distinction entity’s non-profit profit-seeking motive is suffi- cor- corporations for-profit speech cient to defeat or free exercise ex- considered and has been porations Hobby Lobby, 723 claims. See F.3d First rejected in other Amendment pressly (“We 2013 WL at *15 see cases. Supreme no would reason Court rec- v. Federal Election United Citizens ognize constitutional cor- protection Commission, example, poration’s political but not its expression said, “[b]y suppressing speech religious expression.”). for-profit both corporations, manifold Judge dissent of John T. forceful prevents the Government nonprofit, Noonan, Jr., Townley Eng’g EEOC v. & viewpoints reaching voices and (9th Cir.1988), Co., Mfg. put advising voters on which public point plainly: in- are hostile to their or entities persons Amendment, guaranteeing The First terests.” every person of religion free exercise to added); Perry see also v. Los (emphasis nation, guarantee within the ais 1371 Angeles Dep’t, Police corporations may] rightly in- Cir.1997) (“Once [for-profit is the decided that , in Nothing the sweep broad voke[]. activity, fully activity expressive here puts corporations the amendment out- Amendment, by the the First protected scope. and Repeatedly side its success- nonprofit not plaintiffs organ- fact that are fully, corporations appealed have protec- not affect the level of izations does protection Religious Clauses afford speech.”); Transp. to their tion accorded or Just corporation authorize. as a en- Alts., York, New City joys (S.D.N.Y.2002) right speech guaranteed free Amendment, by corpora- First so (“[Djrawing between organiza- distinctions by enjoys guaranteed tion or for-profit non-profit based tions First Amendment to exercise religion. determining how sponsorship much to public hold an First charge park] say [in to event The Amendment does not Amendment.”). First kind only corporation enjoys runs afoul one 57-58, Square self-expression. The Naked Private 51 Hous- outlet for While investors 2013), deserve, (forthcoming expect, get ton L.Rev. available these institutions and to investment, http://papers.ssrn.com/sol3/papers.cfm? profits return on their for share- abstract_id=2173801 clearly download=yes; being & see holders are not the value Blair, Margaret Four enterprises.”); Christopher also The Functions created such Lacovara, Corporate Strange Hybrid Ap- Personhood Public Law & A Creatures: Legal Theory, Working Paper proach Fiduciary Duty Corpora- No. in Benefit tions, (discuss- http://ssrn.com/abstract=2037356 available at 2011 Colum. Bus. L.Rev. ing (noting corporations "support corporations, 'B-Corps,' the build- or "[b]enefit ing, sustaining legal preserving, represent corporate and in- human new form [which] [Ljarge corporations nearly designed profit- .... al- stitutions to accommodate the dual purposes ways just making public goals have broader than and benefit of the social shareholders, movement”). purposes enterprise absolutely enrichment such There is products, providing good Conestoga safe reliable no solely evidence that exists rather, jobs employees, money. operated, new for dis- make It is treatments to ac- eases, investors, options complish specific deeply investment for small vision of its reli- financing college, gious housing making money part While or or access owners. vision, effectively networks that link individuals communication globe, profit around make vast of infor- conceded that has more than amounts them, give agenda. corporate mation available to them an right. The First Amendment does time.” Id. at 625. There certainly this say only religious corporations not text of the Constitution no support for doctrine, only not-for-profit corporations peculiar are or this precedent what Amendment protected. First does there is on the religion role of in the world Congress pick authorize of commerce is to contrary. See Unit- persons or the entities or the Lee, choose States v. ed 455 U.S. organizational forms that are free to ex- (1982) (allowing L.Ed.2d religion. persons ercise their All Amish business owner to raise a free exer- —and corporations our all under Constitution defense alleged cise to his pay failure to persons A statute free. cannot security social taxes for his employees); —are subtract from their freedom. Brown, Braunfeld (internal (Noonan, J., dissenting) Id. at (allowing L.Ed.2d omitted). citation Jewish Philadelphia “merchants” challenge city’s Sunday-closing laws view, Oddly, government’s opposing allegedly because the laws infringed on appears adopted Majority, to be free of religion). As the a species religion, itself based on the sitting Tenth Circuit en banc noted in filthy seeking idea that after lucre is sin Hobby Lobby, Court’s deci- deprive of constitutional enough one sions establish that Free protection, Exercise taking theological “[t]he not evaporate ... do one is position beings that human should when involved in a worship for-profit God on Sundays Hobby Lobby, some other business. 3216103, day go chosen about their business WL at *14 ).19 (citing without reference to God the rest of the Lee and Braunfeld that, Amos, government emphasizes practice 19. The in purpose ernmental either has the or religion.” Supreme gymnasium 'endorsing' Cnty. effect of "the Court held that a Alle- ACLU, gheny v. by 492 U.S. run the was free S.Ct. Mormon Church to dis- 3086, course, (1989). 106 L.Ed.2d 472 "Of charge building engineer a failed who to ob- the self-defining,” word is not standards,” ‘endorsement’ that, serve Church's but in so 3086, id. at Supreme 109 S.Ct. but the doing, "the Court stressed that the Church recognized long govern- Court "has that the operate for-profit gym did not aon basis.” (and must) may ment sometimes accommo- 18.) (Appellee’s During argument, Br. at oral religious practices date may and that it do so government counsel for the relied on that Clause,” violating without the Establishment imply characterization of Amos to first Appeals Unemployment Hobbie v. Comm’n of granting any time that free exercise to a Fla., 136, 144-45, 480 U.S. for-profit corporation inevitably trigger would Weisman, 190.(1987); L.Ed.2d also see Lee v. problems, any Establishment Clause as ac- 577, 627-28, 505 U.S. corporation commodation to the would come J., (Souter, concurring) (arguing L.Ed.2d 467 expense similarly corpora- at the situated government "may that ‘accommodate’ the religious exemp- that had not a tions received religion by relieving free people exercise of noted, already supra As I have see tion. Part generally applicable rules that interfere III.A.l, for-profit Amos did on a not turn callings,” religious with their without "neces- distinction, and, fact, non-profit versus sarily signifying] an official endorsement of open any question regarding left Court disbelief"). religious observance over Other- impact granting Establishment Clause wise, the enforcement of laws that “cut[] religious exemption for-profit corpora- to a sensibilities, religious [they] across as often tion. do[],” "put[ would those affected to the ] government fundamentally, More mis- taking gov- choice of ernment,” sides between God and scope id., takes of the Establishment Clause. place that will a choice often devotion, Under so-called religious "endorsement” test for substantial burden see circumstances, evaluating challenges, Establishment Clause Part "In III.A.2.a. such infra challenged gov- accommodating religion nothing courts look to "whether the reveals be- therein,” act faith W. form word or their So, corporate it not the fess recap, Barnette, 319 U.S. Bd. discriminating Va. justify can itself that of Educ. (1943), 87 L.Ed. Conestoga, pursuit it is not the against right to force government claims it. Yet some- justify that can profits facilitate the Conestoga and its owners to how, employed by the miracle-math drugs contraceptive and use of purchase lawyers, negatives those two its HHS and abortifacients, devices, all including govern- right positive to a up add they do telling the while them that not for-profit against ment to discriminate up opposit have a basis speak even Thus, despite corporation. Remarkable. ion.20 official, high “no or insistence Court’s orthodox prescribe what shall be would petty, reject power grab can I hold nationalism, or other religion, Conestoga politics, invoke liberty own behalf.21 religious force con- its opinion matters of citizens any obligation recognition general under the mandate” yond rules can (third omitted) (internal religious quotation al- unnecessarily conscience marks offend the they original)).) of secular when offend the conscience teration in Weisman, society at all.” not Supreme Court If the were conclusion, I need 21. Because of that Yoder, Amos, mind, contrary Sher- then of a length argument consider at the alternative bert, in which and a host of other cases without even if itself is First the Free granted exemptions under Ex- protection, may Amendment it assert free decided differ- Clause would have been ercise owners, claims of its Hahns. ently. say prece persuasive Suffice to that there is be, Thus, it cannot approach for that in the context of close dent suggest, a decision to accommo- seems to corporations. See Kosher Commack Self-Serv. Conestoga's Hahns' and constitution- date the Meats, Hooker, (2d ally protected liberties would result Cir.2012) (allowing press a kosher deli to impermissible in an endorsement of reli- Free Exercise and Establishment Clause gion. The Establishment Clause does not owners); claims on behalf Stormans Inc. prohibit what the Exercise Clause de- Free Selecky, n. 9 v. 1120 & 1120 sure, government may, be mands. To the Cir.2009) ("We corpora have held that circumstances, the "cross[ ] under certain line standing has free exercise tion to assert the permissible accommodation to unconsti- organization of its owners.... [A]n 629, 112 tutional establishment.” Id. at rights the free of its asserts exercise owners holding (concurring majority 2649 in primarily religious----”); Town need not be prayer graduation cere- school-mandated ley, (holding that "it 859 F.2d at 620 n. 15 is Clause). mony violated the Establishment unnecessary to address the abstract issue granting Conestoga exemption But an to profit rights corporation whether a for nothing the Hahns in this would do more casé independent the Free Clause under Exercise free the[ir] than "lift a discernible burden those of its and officers” be of shareholders id., religion,” exercise of and "Government corporation question "presents the cause in religion permissi- efforts to accommodate rights greater no of its own different from or they burdens on the free ble when remove allowing rights,” its owners' the than religion,” Cnty. Allegheny, exercise of 492 of corporation "standing to [its owners'] assert U.S. at 601 n. 109 S.Ct. 3086. 5b rights”); Tyndale Free Exercise House Pub lishers, Sebelius, . F.Supp.2d is it is a for- v. silenced because Inc. (D.D.C.2012) (“[T]he profit corporation, Tyndale the Hahns must like- beliefs because, quiet by indistinguishable.”); Lega wise sit down and be the and its owners are Sebelius, reasoning, government’s really the Mandate tus (See (E.D.Mich.2012) ("For Appellee’s purposes affect them. Br. does not motion, however, Supply (arguing contraceptive-cover- pending Weingartz that "[t]he compel standing age requirement exercise in order to [Hahns] does not Co. assert but, rather, anything,” president, free exercise as individuals do of its Daniel being compa- corporation Weingartz, ‘his legally separate identified as "[i]t Division, Appellants’ Employment 2. The RFRA Department Claim Smith, Oregon Human Resources Turning to the Appellants’ merits 108 L.Ed.2d 876 claim, I both RFRA am satisfied that Co- (1990), which, while upholding a law that and the a like- nestoga Hahns have shown peyote banned the use of even for sacra lihood of success. RFRA has called been mental purposes, Court held important action congressional the “most First Amendment’s Free Exercise Clause respect religion since First judges does. not require engage in Amendment,” proposed the Congress First case-by-case assessment of religious Thomas, Douglas Laycock & In- Oliver S. by burdens imposed facially constitutional terpreting Religious Restora- Freedom Act, laws. Id. at (1994), S.Ct. 1595. 73 Tex. Con tion L.Rev. gress quickly decried having Smith as specifically provide height- and it exists “virtually eliminated the requirement protection ened to the free exercise of the government justify religion. produced by statute was on reli burdens “extraordinary gious imposed ecumenical coalition exercise laws neutral conservatives, Congress religion.” of liberals and Re- toward U.S.C. Democrats, 2000bb(a)(4). publicans § Northerners The stringent standard Southerners, country and in as a imposed by review RFRA whole, very groups broad coalition of Congress’s action reflects judgment ... traditionally that have defended “governments not substantially should bur various faiths ... as those well den religious exercise compelling without champion who the cause of civil liberties.” 2000bb(a)(3). justification.” § Id. It Religious Freedom Act Restoration intended “to restore the compelling inter Hearing 1990: the Subcomm. On Verner, est test as forth in Before set Sherbert v. Rights Civil & Constitutional the H. 1790, 10 374 U.S. L.Ed.2d 965 Comm, on the Judiciary, Cong. 101st 13 (1963) Yoder, and Wisconsin v. (statement (1991) Solarz, Rep. chief 205, L.Ed.2d 15 5377). sponsor of H.R. ... in all cases where free religion substantially Those diverse voices together came burdened” response 2000bb(b)(l),22 § decision government, Court’s Federal id. ”); ny.’ Sports ignored State ex rel. & purposes. McClure v. rate veil are for all Club, Inc., past very breezes specific Health 370 N.W.2d 850-51 That notion (Minn.1985) (holding objectives “conclusory corporate business for which the that a as- exists, namely, aggregations veil "to facilitate corporation that a sertion has no constitution- Guilden, 129, capital,” of v. F.Supp. Entel 223 right religion unsup- to free al exercise of is (S.D.N.Y.1963), 131 and "to limit or eliminate ported,” allowing and a free exercise claim personal liability corporate principals," of corporation’s because the "are the owners 938, Chapman, Goldman v. 44 A.D.3d 844 asserting ones the first amendment 126, (N.Y.App.Div.2007). 127 N.Y.S.2d Noth religion”). the free exercise of ing history important in of the doctrine of Majority argu- The forecloses line separate corporation’s identity justifies a ment, insisting although corporate ”[t]he civil Majority limitation advantages several form offers the least 'not Hobby Lobby, endorses. 723 at F.3d liability,’ which limitation of ... was 1148, 3216103, J., (Hartz, WL 2013 *27 give up prerogatives” shareholder must some ("What concurring) limiting does financial 388), (Maj. Op. including, appar- in return choosing do with risk have to to live a reli ently, religious his conclu- convictions. That life?”). gious a sion rests on mistaken idea business that the purposes corporate for which Supreme law has devel- Although 22. Court held RFRA oped underpin legal and that of a applied fiction unconstitutional state and local being corporation separate governments Congress’ from its owners because it exceeded people corpo- power § must mean that the behind the under of the Fourteenth Amend- in a a claim or defense that violation as free exer- pre-Smith to look we are assessing appropriate RFRA proceeding in and obtain judicial jurisprudence

cise FAA, 2000bb-l(c). v. claims, Bensenville § see Vill. relief.” Id. (D.C.Cir.2006). 52, F.3d Burden a. Substantial judicial short, restores RFRA known as “strict scruti of review standard RFRA, imposes rule a sub- “a Under test demanding “the most ny,” which the free exercise of burden on stantial City law.” constitutional known to practice a prohibits if it religion 534, Flores, 507, 521 U.S. v. Boerne rooted sincerely held both (1997). The 2157, 138 L.Ed.2d asserting party beliefs of the religious government the Federal prohibits statute Ali, v. claim.” States United burdening] person’s a “substantially Cir.2012) (internal quo- if the burden religion even omitted). relat- Within the tation marks general applicabili a rule of results from Land Religious of the Use ed context 2000bb-l(a), except when § ty,” id. Act of Persons Institutionalized that appli can government “demonstrate (1) “a exists where: “substantial burden” person (1) is cation of the burden — fol- to choose between follower is forced compelling governmen of a in furtherance religion of his lowing precepts (2) interest; least restrictive is the tal generally otherwise forfeiting benefits gov furthering compelling means of aban- [persons] to other versus available interest,” § id. 2000bb-l. ernmental precepts religion of his doning one any religion” “includes term “exercise benefit”; or “the to receive a order com whether or not religion, exercise of puts pressure substantial to, system of reli by, central pelled substantially modify his an adherent 2000cc-5(7)(A), § incor Id. gious belief.” his beliefs.” behavior and to violate 2000bb-2(4). § A by 42 U.S.C. porated Klem, Washington v. religious practices whose bur person (3d Cir.2007). “may RFRA assert dened violation rations, Flores, ment, Congress and the and that City v. 521 U.S. see Boerne (1997), "to often use the word "individual” 138 L.Ed.2d 624 distinguish person and a between natural apply to the Federal Govern it "continues Servs., Texas,-U.S.-, Dep’t ment,” corporation”); Soc. Monell Sossamon (2011). 56 L.Ed.2d 179 L.Ed.2d 700 (1978) ("[B]y it was well under- (erroneously) Having that cor- determined corporations should treated as stood that ones, closely held do not en- porations, persons virtually purposes even all natural liberty, Majority religious statutory analysis.”). declined to joy Giv- constitutional and corporation is a corporations such a can ex- "decide whether en that assert 388.) III.A.l, claims, (Maj. Op. supra RFRA.” Part the Dis- 'person' under the ercise see Although concluding the statute it- that "context I believe that it is. trict Court erred for-profit "person,” corporation the fallback indicates” that a does not define self purposes "person” for of RFRA. in the United States Code definition section Specialties Corp., F.Supp.2d at context indicates Wood provides that "unless the Lobby, generally Hobby 'person' ... in- 411-12. See ... the word[ ] otherwise WL at *12 at corporations, companies, associa- F.3d cludefs] tions, firms, societies, ("[T]he given persua- joint us no partnerships, Congress think that meant sive reason to companies, as well as individuals....” stock 1; anything other 'person' in RFRA to mean § v. Palestini- 1 U.S.C. see also Mohamad - Auth., -, Dictionary meaning in its default than U.S. corporations regardless includes (explaining Act—which 182 L.Ed.2d 720 status."). corpo- profit-making of their "person” that the word often includes regulations only burden test derives from ventive Healthcare apply The substantial decisions Sherbert Court’s Conestoga, corporation a to secular with- Sherbert, the Court and Yoder. held rights, out free exercise not the Hahns. unemployment ben- that a state’s denial of may burden the Hahns Whatever feel from Seventh-Day a for refus- efits to Adventist being for-profit involved corporation with a substantially work on ing Saturdays provides health insurance that could religious her burdened exercise of be- be possibly pay contraceptives, used to Saturdays. against working lief burden simply too indirect be state law at issue in that case RFRA.”). considered substantial under the following her to choose between force[d] fallacious, That line of argument for the religion of her and forfeit- precepts I just reasons have discussed and will not hand, benefits, on the one and aban- ing repeat. supra Part IIIA.1. doning precepts one of the of her reli- work, gion order to on the accept Relying recently on the reversed panel imposition other hand. Governmental in Hobby Lobby, decision the District a same puts such choice kind of of argument Court’s second line was that upon religion burden the free exercise “the Hahns have not demonstrated that against a fine imposed appel- as would [the Mandate] constitute^] substantial Saturday worship. her lant for upon religion,” Conestoga burden their' Sherbert, at S.Ct. 1790. Specialties Corp., F.Supp.2d Wood at Yoder the that a And in Court held com- 413, because “the ultimate and deeply pri pulsory substantially school law attendance vate choice to use an abortifacient contra burdened the exercise of Amish Hahns, ceptive rests not with but with who parents refused to send children Conestoga’s employees,” id. at 414. As school. The in Yoder high burden was a it, the District saw “any burden fifty between five fine of dollars. The imposed by the regulations is too attenuat be Court held that burden to “not ed be substantial” considered because severe, inescapable,” requiring but series of must first “[a] events occur be parents perform undeniably “to acts fore the actual of an use abortifacient odds with fundamental tenets of their reli- play,” would come into including that “the Yoder, gious belief.” 406 U.S. at payment [must insurance made] S.Ct. 1526. group plan health insurance that will cover appre The District Court here failed to ...; contraceptive services the abortifa applicability precedents. ciate the of those cients must be made available to Conesto held, reasons, It for two that the burden ga employees through pharmacy or other by the imposed Conestoga Mandate on facility; healthcare and a decision must be First, the Hahns was insubstantial. it said by Conestoga employee made and her Conestoga, corporation, as a for-profit doctor, may not who choose to avail religious rights lacks and so can suffer no services.” themselves these Id. at 414- them, and, relatedly, any burden lb. “Such an indirect attenuated rela religious liberty harm to Hahns’ is “too held, tionship,” “appears, the Court unlike attenuated to be substantial” because it is necessary to establish ly substantial Conestoga, not must they, that face the . Hobby Id. 412-13 (quoting burden.” Specialties Mandate Wood 1120-21, Lobby, No. 723 F.3d at 415-16; Corp., see also banc, rev’d' en 2013 WL corporate id. at 414-16 form (“Conestoga’s (10th Cir.2013)) (internal quota ... separates require Hahns from omitted). ACA, ments as the Women’s Pre- marks tion ability for protection ... reasoning that is that considerable with problem The performance or misapprehends practice (through the sub fundamentally actions) claim. As the Sev one’s non-performance of the Hahns’ of certain stance when rightly pointed out religion.”). enth Circuit in the Mandate case granting injunction an only and the Conestoga’s Even if Hahns’ it, religious-liberty violation “[t]he before religious objection were ultimate use of in the inheres coerced here issue .cover by contraceptives the offending abortifacients, sterili age contraception, however, employees, the fact that the final services, zation, per and related not—or decision involves a series of sub- on use only precisely, not the later haps more —in decisions not render burden does contraception or related purchase or use religious insubstantial. Sebelius, Korte v. No. services.” Nothing suggests that indirect RFRA at *3 Dec. WL Cir. pressure violate the statute. See cannot Publishers, 2012);. Tyndale see also House 2000bb-l(a) (prohibiting § not U.S.C. Sebelius, F.Supp.2d ones). burdens, “direct” but “substantial” (D.D.C.2012) (“Because coverage, it is the Indeed, though a burden even use, just contraceptives not “indirect,” “the Supreme characterized as plaintiffs object, issue to which the it is Court indicated that indirectness is not contracep use of irrelevant that the a substantial burden.” finding barrier to independent tives decisions depends on Tyndale, F.Supp.2d at The 123. Indus., parties.”); third Grote LLC claimant in v. Review Board Thomas (S.D.Ind. Sebelius, Division, Security Employment Indiana 2012) (“We acknowledge that Plaintiffs ob 67 L.Ed.2d ject just contraceptives, to the use because, (1981), job quit his based itself’). coverage requiring but to the beliefs, religious his could not in a he work provide offending them insurance factory tank The produced turrets. requires the Mandate the Hahns coverage, unemployment state benefits denied him Conestoga to take direct actions argued objection that his was unfound- faith, of their Mennonite violate the tenets willing ed because he had been to work non penalties the threat of severe for produced, factory a different materials compliance. They “inescapable face the might be used for tanks. The Su- facilitating provision choice” between preme determining held “drugs they and services believe religious whether Thomas’s beliefs were (and thereby committing] immoral burdened, his second-guess it could not act),” “suffer[ing] penal immoral severe judgment what connection to arma- about non-compliance ties with Mandate.” for production unacceptably ment was close 26-27.) (Appellants’ Br. at As Opening line, him: drew and it is not “Thomas Yoder, explained in religious Sherbert line he say us that the drew was an substantially a law exercise is burdened Id, unreasonable one.” that puts pressure person substantial on a compulsion may be indi- 1425. “While discouraged to commit an act or forbidden reasoned, rect,” infringe- “the the Court faith, Hahns’ person’s upon ment free exercise is nonetheless Mennonite faith forbids them not 718, substantial.” Id. at 1425. from using contraceptives, certain but The instructed that Court further “[c]ourts from paying for others to use them as well. should not undertake to dissect Baptist United States v. Indianapolis Cf. (7th Cir.2000) analyzing beliefs” substantial burden Temple, when (“The 715,101 questions. provides Free Exercise Clause ... Id. at entitled, choice, much of Appellants just they accept here are as limits on their was, about judgments as Thomas to make own conduct as a matter of conscience and acquisition when their connection with the faith are not to be superimposed on the contraceptives and use of becomes close statutory schemes which binding on enough to their faith. contravene in that activity.” others U.S. at Lee, 1051. But S.Ct. even in the Court Moreover, if the ulti- the indirectness of requirement pay held that to Social truly mate use contraceptives decision to Security substantially taxes burdened a the harm em- rendered insubstantial to an for-profit employer’s religious Amish exer- ployer, exemptions then to the Mandate no “[bjecause cise.25 Court held necessary. would be The harm to the payment of taxes or receipt benefits by Catholic one of its employees’ Church beliefs, Amish religious compulso- violates decision to abortifacient be use an would ry in participation security sys- social indirect, and, equally as the District tem interferes with their free exercise logic, pose equally Court’s would as insub- rights.” Id. at Al- stantial a burden the Church’s free though religious the Court héld that ad- rights. exercise But the Mandate does herents who enter the commercial market- provide “reli- exemption an for so-called place do not have an right absolute gious see employers,” supra note religious receive a from all exemption legal regulation thus itself allows that faith, requirements that conflict their with indirectly employee’s only choice that af- id. at fact that employer fects an can result in substantial that Court concluded there was a substan- harm to the employer.24 tial and proceeded apply burden strict true, Supreme It is cau- as the scrutiny illustrates that Lee, “every tioned in United States carte does not have blanche to substantial- pez’son cannot shielded from all the ly religious burden the exercise of for- every burdens as- exercising incident profit corporations and their owners. pect practice be- religious Thus, liefs. When of a sect I would hold particular followers District enter activity into commercial as a matter Court ezred the Man- concluding that logic applies 24. The same to the District 25. The Court in Lee did use the but, burden,” Lee, phrase Court’s statement there is no difference since "substantial if, hand, employers consistently one employees the Court has its hold described or, purchase contraceptives salary ing establishing gov with on the in that case as that the other, charge they religious them substantially obtain free of ernment burden through company-provided regulation health insurance. if it can show is, Specialties scrutiny Corp., question satisfies Wood strict —that 413-14; Autocam, regulation compelling gov see also No. that the furthers a 1:12-cv-1096, slip op. (noting at 11 ernmental interest in the least restrictive Commissioner, plaintiffs "paying indirectly possible. will be for the In means Hernandez through wages” same em services that their U .S. (1989), ployees may contraception example, choose use "for L.Ed.2d 766 the Court services”). products holding following If that we're described Lee in case, exemptions required, even no would be manner: decision in Lee ”['0]ur establishes religious society, employers.. justi a substantial would be a free that even burden public there paying is a world of difference between fied the ‘broad interest maintain money strings ‘myriad compensa ing system,’ attached tax excep no a sound free of flowing variety employee’s being tion for an work and forced from a wide tions coverage pro expressly to fund Id. at insurance beliefs.’” 109 S.Ct. 2136 Lee, 1051) goods (quoting vides' for and services believed to be 455 U.S. at added). morally reprehensible. (emphasis 412 Preserving public health and substantially ending burden Cones-

date does are indeed of tre- gender discrimination of reli- Hahns’ free exercise and the toga’s The significance. gov- mendous societal gion. certainly can claim “a compelling ernment in safeguarding public interest health Scrutiny Strict b. by regulating the health care insur- “substantially bur- action government If Holder, markets.” v. ance Mead 766 exercise, upheld it will be dens” 16, (D.D.C.2011). And, 43 F.Supp.2d as it if only it “is in furtherance of RFRA under of undoubted both “importance, interest,” governmental compelling society, individual and to [to] remov[e] restrictive of accom- the least means” “is barriers economic advancement po- 42 U.S'.C. that interest. plishing and social integration litical that have his- Majority § nor Neither the 2000bb—1. torically plagued disadvantaged certain addressed strict the District Court women,” groups, including Roberts v. U.S. test, they disposed of the because scrutiny 3244, Jaycees, 468 U.S. S.Ct. 104 The grounds. on other case (1984), 462 there is a compel- 82 L.Ed.2d scrutiny must Court has said strict ling “[assuring interest women equal ” “ in fact.’ theory, but fatal goods, not be ‘strict to ... privileges, access advan- Pena, Constructors, men, enjoyed tages” Inc. v. 515 id. Adarand 237, 2097, 200, 132 L.Ed.2d S.Ct. U.S. Assuming for the sake of discussion that (1995). it recently And noted that actually the Mandate advance those “[sjtrict is also true”: scruti- opposite “the interests, it must nevertheless be observed theory strict in but feeble must not be ny “general the mere “invocation” of a at Aus- Fisher Univ. Texas in fact.” public interest in promoting health and U.S.-, 2411, 2421-22, [or, tin, matter, safety gender 133 S.Ct. equali (2013). ty] ... is not under Only enough” RFRA. L.Ed.2d feeblest Gon Espirita zales v. O Centro Un scrutiny strict could result in application Beneficente 438, 126 Vegetal, iao do 546 U.S. the Mandate on this record. upholding (2006). gov 163 L.Ed.2d 1017 The application ernment must show that the Compelling i. Interest the Mandate to and Conestoga the Hahns are those “of Compelling interests in particular compelling furthers those in order,” Babalu highest Church the Lukumi 1(b)(1); § terests. U.S.C. see 2000bb— Hialeah, City 508 U.S. Aye, Tyndale, (providing at 125 124 L.Ed.2d 472 government “must show that re interests,” (1993), “paramount Thomas quiring [appellants] provide contra Collins, ... ceptives they object which will fur (1945). 89 L.Ed. 430 government’s compelling ther the interests that the Mandate advances maintains two public provid health and in promoting governmental “pub interests: compelling care”); ing equal women access to health gender (Appel equality.” lic health Centro, see also O at 34.) In particular, lee’s Br. states (“RFRA requires Govern the “health services issue here ment to demonstrate that the compelling relate to an interest —a woman’s control through interest test applica satisfied compel procreation over her is so person’— challenged tion of law ‘to —that constitutionally protected to be ling as particular claimant whose sincere exer (Appellee’s substantially from state interference.” Br. religion being cise of bur 34-35.) § (quoting dened.” U.S.C. 2000bb- 1(b))). required ployers Mandate, be including ] Courts are “reli “look[ broadly justify gious formulated interests yond employers” appear who to share the ing general government the of applicability religious objection same Conestoga as Hahns, mandates and the asserted leaving scrutinize[ ] the of tens of millions em specific exemptions of to granting harm ployees and their by families untouched 431, religious claimants.” Id. at particular regarded it.26 law cannot pro as “[A] Yoder, 1211; 126 also 406 see U.S. tecting highest an interest of the order 236, (“[I]t 92 was S.Ct. 1526 incumbent when appreciable damage it leaves to that particularity State to with more the show supposedly unprohibited.” vital interest strong its in com admittedly how interest Church the Aye, Lukumi Babalu 508 of adversely education would be af pulsory (alteration 547, U.S. at 113 S.Ct. 2217 by exemption an the granting fected to omitted). So, quotation internal marks Amish.”). The government “offer[ ] must government’s when proffered compel granting requested evidence that reli ling applies equally employers interest to seriously accommodations would gious subject it, a law exempt to and those from compromise ability its to its administer” “it to is difficult see how same [the] find Centro, contraceptive Mandate. O 546 ings [supporting government’s inter 435, 126 S.Ct. 1211. It has failed U.S. can preclude any alone est] consideration do that. to a, exception” of similar similarly for a situ Centro, plaintiff. ated O 546 U.S. at government’s arguments

The ac against 1211; 126 S.Ct. see also commodating Republican Party Hahns White, Minn. v. are “undermined the existence of nu S.Ct. 2528, merous has L.Ed.2d 694 exemptions already (noting [it made] purpose the ... that the of a to mandate.” Newland v. Sebeli law undermined us, (D.Colo. woefully when it “so F.Supp.2d underinclusive as to 2012). choice, By government purpose challenge its own render belief [its] credulous”). exempted has em- enormous number of The is a Mandate classic employers exempted compelling 26. sheer number of applied interest as to a Native distinguishes from the from Mandate this case tribe that American used the substance as case, United Supreme States v. Lee. part religious of its services. U.S. at that, although "compulsory Court held heavily 126 S.Ct. 1211. The Court relied participation security system social in- religious granted exemptions similar with re- plaintiff employ- with terfere[d] [the Amish spect peyote the use "hundreds of rights,” free er’s] 455 U.S. at Native thousands” members of the Ameri- system 102 S.Ct. security the social Church, can such found that broad ex- scrutiny applied nonetheless satisfied strict weighed against emptions heavily finding a employer, regardless Amish Con- compelling interest. Id. at gress's having security exempted from social "self-employed taxes members of other reli- Mandate, respect to as a With result of beliefs,” gious groups with similar id. at multiple wide-reaching exemptions, (citation omitted). 102 S.Ct. 1051 As the perhaps upwards millions individuals — it, provision exempted Court described million, Newland, see category” "[s]elf-employed "narrow ("The government exempted has over persons” who members of "a plan participants 190 million ... health Amish, community” like the its "ha[s] mandate.”)— preventive coverage care system," own 'welfare' id. at government’s will outside the fall interest group say a small the least. increasing contraceptives. access This By way comparison, case thus even further removed than O government held in O Centro that had showing exemption failed to make a that a Centro from narrow involved in ban on (cid:127) hallucinogenic use of a substance served a Lee. Comm’n, Indus. arbitrary underinclusive example such Cir.1990) (internal legitimately quotation be said marks It cannot ness. omitted). open inter If the “has compelling governmental government vindicate already satisfying legiti- way because it a less drastic est grandfathered interests, from its reach exempted not choose [regu- mate employees, under plans, employers latory] broadly scheme stifles the ex- “religious employ it defines as and what personal ercise of fundamental liberties.” (see 4), Op. at n. thus volun Maj. Celebrezze, ers” v. Anderson U.S. millions allowing upon millions tarily (1983) (in- L.Ed.2d 547 some estimates million—to people by omitted). quotation ternal marks — that do not by plans insurance be covered Conestoga argue Hahns The pro vital interest of satisfy supposedly government directly could further its contraceptives. public with free viding the access to providing greater interest con- Sebelius, v. No. 12-cv- Coll. Geneva their traception violating religious without — —,-, WL by, for example, exercise (W.D.Pa. 2013) 3071481, at *10 June (1) offering] or tax deductions credits (“In myriad to light exemptions purchase contraceptive for the ser- requirements already granted, mandate’s (2) vices; expanding] eligibility for al- woefully requirement underinclusive ready existing programs that federal compelling therefore does not serve a (3) free provide contraception; al- (internal quotation government interest.” lowing] use pay citizens who to contra- omitted)). . marks to to the ceptives receipts gov- submit reimbursement; or ernment Means ii. Least Restrictive providing] pharmaceuti- incentives for government affirmatively Nor can the companies cal that manufacture contra- the Mandate is the least establish provide products ceptives such of advancing restrictive means its interests offices, and pharmacies, doctor’s health gender equality. in health and Statutes charge. clinics free of fail the “least restrictive means” test when 51.) at (Appellants’ Opening Br. re- they are “overbroad” “underinclusive.” sponse, government argues Aye, Babalu Church Lukumi Appellants the least-re- misunderstand 546, 113 underin- U.S. 2217. pro- strictive-means test and that manifest, just de- clusiveness here posed require alternatives “would federal Moreover, scribed. the least restrictive taxpayers pay cost of contraceptive uncovering test is aimed at means “the for-profit, for the employees services extent to which accommodation of the 40.) companies.” (Appellees’ secular Br. at impede objec- [plaintiff] would the state’s government evidently It is the tives,” mis- the state has made “[w]hether test, govern- understands the for while the showing depends comparison this on a every ment need not address conceivable government altering cost its alternative, it refute the activity religious practice to allow “must alternative challenger,” schemes offered unimpeded continue versus cost Unit- Wilgus, religious imposed by govern- interest ed States 638 F.3d 1288- (10th Cir.2011),27 activity.” ultimately ment S. Ridge Baptist settling Church on Wilgus, port regulation, the Tenth choice and it 27. As Circuit said must re- every need not "refute each and offered fute alternative schemes regulation alternative scheme.” conceivable Wilgus, sup- 1289. But it "must “necessary” achieving its that Conestoga that is would hold and the policy Hahns Fisher, -, have established a likelihood of compelling goals, succeeding the merits their RFRA claim. And it must seek 2419-20. religiously out neutral alternatives before The Appellants’ First choosing policies impinge Amendment Claim liberty. Thompson W. States Med. Cf. Conestoga and the Ctr., bring Hahns also claim separate under the First (2002) (“The Amend sim L.Ed.2d 563 Government discussed, previously ment. As the Su justification sufficient ply provided has not preme in Smith held the Free any If the Amendment here. First means Exercise Clause is not implicated when the it thing, regulating speech means that government burdens a person’s religious Yet must be a last—not first —resort. through laws that are neutral and been here seems to have the first strate applicable. generally 494 U.S. at thought In gy try.”). the Government to contrast, S.Ct. 1595. In law “[a] burden responsibilities, government the has those ing religious practice that is not neutral or utterly showing failed. It made has no not general application must undergo any of the Appellants’ that alternative rigorous the scrutiny.” most Church of Fisher, ideas would be unworkable. Cf. Aye, the Lukumi Babalu 508 U.S. at U.S.-, (stating, at 2420 S.Ct. “Neutrality 2217. general preferences, the context of racial that interrelated, are ... applicability fail ultimately must reviewing court “[t]he satisfy requirement likely ure to one is a satisfied that no al workable race-neutral indication the other has not been sat produce ternatives would the ... benefits” 531, 113 isfied.” Id. fact, sought). government already the view, In my general the Mandate is not contraception provides free to some wom ly applicable, and it not neutral. “A law en, and there has no showing been general applicability requirement fails the not increasing the distribution of it would category religiously if it burdens moti government’s goals. achieve the Because vated conduct but or does exempts not government the not has refuted that category reach a substantial of conduct satisfy could its interests in the dis wider religiously that is not motivated and that any contraception through tribution purposes undermines the the law to at by Conestoga all of the means suggested degree same the least the as covered con Hahns, the burdening without is religiously duct that motivated.” Black to rights religious liberty, government Pennsylvania, hawk v. 381 F.3d has not shown that Mandate is (3d Cir.2004). Here, already noted, as addressing least restrictive means of those government provided numerous ex govern interests. It be that large emptions, categories of which are political ment’s interests better satis to religious objections, namely, unrelated by forcing fied the Hahns to the pharmacy grandfathered plans exemption by trying persuade counter than to voters with exemption employers less than support con other means fund free And it less employees. seems than not traceptives, political expediency but say religiously neutral that some moti synonymous with “least restrictive means.” employers picked by vated ones —the Accordingly, the not government has while exempt others are —are I scrutiny, Finally, arbitrary say met burdens of not.28 it is utterly strict challenger” through pre- already I have discussed the evidence 28. Because —"both "non-profit for-profit” in the Id. sented record.” versus distinction at (2d ed.1995). principle ap § That depend on whether 2948.1 liberties Un- violation employees. equal 49 or 50 force to a plies hires company therefore, Amendment, First First RFRA because RFRA enforces

der the to strict scruti- subjected to be Mandate freedoms. See Kikumura Amendment in relation to Cir.2001) above discussed ny. As Hurley, by Conestoga and brought claim RFRA (“[Cjourts have satis plaintiff held that a III.A.2.b, Hahns, supra Part see by alleg irreparable analysis harm fies test, daunting pass does Mandate RFRA.”); Jolly Cough ing a violation and, accordingly, they have demonstrated Cir.1996) (“Courts (2d lin, succeeding likelihood a reasonable persuasively irreparable have found Amendment claim. their First accompanies a substantial burden on harm rights an individual’s to the free Harm, Irreparable B. (citations omit religion under RFRA.” question of likeli- Focusing on the ted)). Threats to First Amendment merits, neither the hood of success harmful potentially are often seen so Majority nor the evaluated District Court they justify proof threshold of lower Hahns Conestoga and the have whether show a likelihood of success on the It is harm. irreparable demonstrated Playboy Grp., merits. Entm’t confront, brings as it painful topic to States, 772, 783 F.Supp. United the immediate and unconscionable fore (“In (D.Del.1996) a ... in which the case of over- consequences government’s injury is a threat to First Amend alleged reaching. interests, irreparable the finding ment of injury for which “Irreparable harm is is often likelihood injury tied to the com monetary adequate award cannot be merits.”), on the 520 aff'd, success U.S. Dairy Int’l Foods Ass’n v. pensation.” 1141, 1309, 117 473 137 L.Ed.2d Cir.1996) (in (2d 67, F.3d Amestoy, 92 71 (1997). omitted). “It quotation marks is ternal government Because the demanded that loss of First ‘[t]he well-established Hahns and before Conestoga capitulate freedoms, for even minimal Amendment heard,29 appeal their was even and because time, unquestionably periods of constitutes the District Court in- preliminary denied injury.’” v. Casey, Hohe irreparable relief, junctive hardship severe (3d Cir.1989) 69, Elrod (quoting (See Maj. begun. Op. (noting at 381-82 2673, Burns, U.S. “Conestoga currently complying is (alteration (1976)) in original). L.Ed.2d Mandate”).) with the with ruinous Faced “[wjhen fact, alleged deprivation In fines, being the Hahns Conestoga involved, most constitutional courts pay contracep- offending forced showing irreparable no further hold that tives, abortifacients, including in violation 11A injury necessary.” Charles Alan convictions, every Mary Kay Arthur Miller & Wright, R. Kane, day passes Federal Practice and Procedure under those conditions is a III.A.l, Workers, Post, repeat Washington length, supra July see I will not avail- Part my rejecting http://www.washingtonpost.com/ it in this reasons for context. able politics/white-house-delays-health-care-rule- that-businesses-provide-insurance-to-workers/ government’s 29. Given recent decision 1e2-aef3-33 9619 delay implementation aspects of other 2013/07/02/f87e7892-e360-l ACA, eab080_story.html, why Sandhya Zachary see & one wonders could A. Goldfarb Somashekhar, give religious breathing Delays Health- believers some White House Care Rule that Insurance consideration the Mandate. Businesses Provide room in which harm is day irreparable inflicted. interests on the side.” other Korte v. Se Elrod, belius, 427 U.S. at 96 S.Ct. 2673 12-3841, No. 2012 WL (“The freedoms, (7th loss of First Amendment 28, 2013); *5 Cir. Dec. see also Mona time, even minimal periods unques Sebelius, ghan v. F.Supp.2d 802, tionably irreparable injury.”). constitutes (E.D.Mich.2012) (“The harm of delaying Majority’s guarantees ruling The implementation aof statute that may and, grievous go harm will as the days later deemed constitutional is out up, pile Spe worsen. See Wood weighed by the of substantially risk bur Corp. Dep’t cialties Health & dening the free of religion.”). Servs., Human No. 2013 WL addition, preliminary injunction (3d 2013) at *6-*11 Jan. Cir. would not harm the public interest. On (Jordan, J., dissenting). contrary, matter, a practical “[a]s if a plaintiff both a Injunction demonstrates likelihood Remaining C. Factors success and irreparable merits inju- Conestoga and the have also Hahns met ry, it almost always will be the case that remaining preliminary injunction fac- public plaintiff.” interest will favor the A preliminary injunction tors. would not Tel. Am. & Tel. v.Co. Winback & Con- in greater result harm to the Program, Inc., serve 42 F.3d 1427 n. would merely quo but restore the status (3d Cir.1994). public “[t]he And parties. goals between “One of the whole has a significant interest in preliminary injunction analysis ensuring quo, maintain status defined as ... protection of First [the] Amendment last, peaceable, status Caruso, noncontested liberties.” Jones v. 569 F.3d Pharm., parties.” Kos Andrx Cir.2009). injunction An would (3d Cir.2004) (al- Corp., simply put Conestoga’s employees in the quotation teration and internal marks position same as the tens of millions of omitted). The last uncontested status be- employees and their families whose em- the parties prior tween was to January have ployers already exempted been from 2013, the date the Mandate became effec- the Mandate. against Appellants. tive “Granting an injunction would restore state of af- IV. Conclusion Opticians fairs.” Ass’n Am. v. Indep. and, This is a controversial in some Am., (3d Opticians ways, case, complex in the final analy- but Cir.1990). Moreover, the harm to Cones- sis should join not be hard us to toga and the Hahns caused the denial many courts country across the that have preliminary injunction vastly out- looked at the and its implementa- Mandate weighs government the harm to the were tion concluded that injunction granted. Again, any be enjoined telling should be sincere infringement on person’s First Amend- sanctity put believers of life to then- ment if for a short —even consciences aside and other support peo- time—constitutes irreparable injury. See reproductive ple’s choices. The Elrod, District 427 U.S. at 96 S.Ct. 2673. ruling Court’s should reversed and a Although injunction preliminary this preliminary injunction should issue. might case “temporarily interfere[] government’s goal increasing cost- free access to contraception and steriliza-

tion,” that outweighed by interest “is

harm religious-liberty substantial

Case Details

Case Name: Conestoga Wood Specialties Corp. v. Secretary of the United States Department of Health & Human Services

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 26, 2013

Citation: 724 F.3d 377

Docket Number: 13-1144

Court Abbreviation: 3rd Cir.