*1 Photo 6 Grote, III; D. William William Dominic
Grote, IV; Grote, Jr.; Walter F. Mi Grote; R. Grote, chael W. Frederick III; Grote; John Industries, R. Grote LLC; Industries, Inc., and Grote Plaintiffs-Appellants, Sebelius, Secretary Kathleen of Health Services, & al., Human et Defendants-Appellees. Cyril KORTE, Korte, B. Jane E. Nos. 13-1077. Luitjohan Contractors,
Korte & Appeals, United States Court of Inc., Plaintiffs-Appellants, Seventh Circuit. Argued May 2013. Decided Nov. SEBELIUS, Secretary Kathleen Services, Health & Human et
al., Defendants-Appellees. *5 White,
Edward Lawrence Attorney, Ann Arbor, MI, for Plaintiffs-Appellants. Klein, Alisa B. Bradley Phillip Hum- phreys, Department Justice, Washing- ton, DC, for Defendants-Appellees. FLAUM, ROVNER, Before and SYKES, Judges. Circuit SYKES, Circuit Judge.
These appeals challenge consolidated the federal government’s “contraception among many im- ment. These cases—two mandate,” requirement regulatory currently pending in courts around Department Health posed by the (“HHS”) country important questions implement about Human Services —raise and their closely Patient Protection whether business owners the 2010 the terms of corporations may Act. The mandate held assert and Affordable Care objection to contraception mandate provide coverage for requires employers forcing provide and whether them to procedures contraception and sterilization coverage substantially their plans on a burdens reli- employee in their health-care hold that Noncompliance gious-exercise rights. We car- no-cost-sharing basis. plaintiffs owners and their penalties ries financial and the risk business heavy —the companies may challenge the mandate. of enforcement actions. — compelling further them We hold The are two Catholic families plaintiffs substantially cover these services burdens closely corporations and their held —one religious-exercise rights. Under company in and the construction Illinois justify RFRA the must manufacturing firm in Indiana.' other a of strict burden under the standard scruti- profit, are secular and for businesses so, far ny. So it has not done and we conformity they operate but doubt it can. Because the RFRA faith commitments of the families that own likely claims are to succeed and very plaintiffs object them. The manage protecting balance harms favors the re- providing the man- religious reasons plaintiffs, ligious-liberty rights of we They exemp- dated sued coverage. with instructions to reverse remand statutory tion on constitutional *6 barring preliminary injunctions enter en- grounds. against forcement of the them. mandate juncture stage at this is the Reli Center
gious Restoration Act of 1993 Freedom Background I. (“RFRA”), §§ seq., 2000bb et U.S.C. Contraception The A. Mandate the federal prohibits on “a placing substantial burdens 23, 2010, Congress adopted March On religion,” person’s id. Act, sweeping legis Affordable Cafe 2000bb-1(a), § it can unless demonstrate and overhaul the na regulatory lative is the re applying the burden “least Act system. The “aims tion’s health-care furthering ... strictive means of com [a] increase of Americans cov the number interest,” id. pelling governmental and decrease the ered health insurance 2000bb-l(b). § Focusing primarily oh of Indep. Fed’n cost of health care.” Nat’l claims, plaintiffs in each RFRA (“NFIB”), - U.S.-, Bus. v. Sebelius preliminary injunction. case moved for 2566, 2580, L.Ed.2d 450 relief, judges holding The denied district (2012). the Act is a re One feature of likely were not to succeed. the claims plans health-care quirement employee disagreed enjoined and provisionally We certain min provide governed ERISA1 pending ap of the mandate enforcement partici coverage plan imum levels of peal. pants and beneficiaries. See U.S.C. requirements § (applying 1185d
The have been briefed and appeals now Public A of Health argued ready part for decision. Plena- Title XXVII and are by the Act amended Affordable ry judg- our earlier Services as has confirmed review Act, rity §§ seq. et Employment 1. The Retirement Income Secu- U.S.C. ERISA-governed Act to group counseling Care health for all reproductive women with plans). specifically, More capacity.” Admin., Affordable Health Res. & Servs. Act general require- Care establishes a Women’s Preventive Services Guidelines: employer-sponsored ment group Expands Care Act Prevention Affordable plans health-care cover “preventive Coverage care Women’s Health and Well- screenings” for women on a Being, no-cost- http://www.hrsa.gov/womens basis; (last 2013). sharing Congress instructed guidelines/ HHS visited Nov. (“the to fill in the details: contraceptives These include oral methods, pill”), implants injec- barrier group plan A health and health insur- tions, emergency contraceptives oral offering group ance issuer or individual (“Plan “Ella”), B” and shall, intrauterine health insurance coverage at a February devices.2 On HHS provide minimum coverage for and shall published regulations final incorporating impose any sharing require- cost guidelines. the HRSA Group Health for— ments Plans and Health Insurance Issuers Relat- ing Services, to Coverage of Preventive (4) women, respect such addi- (Feb. 2012). Fed.Reg. 8725 agen- preventive tional care and screenings cy made the mandate effective in the first not described in paragraph pro- plan year August after 2012.3 See comprehensive vided for in guidelines 147.130(b)(1). § 45 C.F.R. supported by the Health Resources Services Administration Noncompliance with the contraception [“HRSA,” agency an within HHS] punished by mandate is steep financial purposes of paragraph. this penalties and other civil remedies. For example, provide failure to the mandated § 300gg-13(a); U.S.C. see also 29 coverage brings penalty a tax per § $100 U.S.C. 1185d. day per employee $36,500 per year per — promulgating Before regulations pursu- employee. 4980D(a), § See 26 U.S.C. directive, ant to statutory the HRSA (b)(1). If employer discontinues offer- sought advice from the Institute of Medi- *7 ing a plan health altogether, penalty the is cine at the National Academy of Science $2,000 per year per employee. See id. about what services to in pre- include (c). 4980H(a), § addition, In noncomply- ventive-care mandate. Based on the Insti- ing employers potential face enforcement recommendations, tute’s the HRSA issued Secretary actions plan of Labor and comprehensive guidelines requiring cover- participants and beneficiaries under age (among things) other Food “[a]ll §§ ERISA. See U.S.C. 1185d. Drug and Administration ap- [“FDA”] proved methods, contraceptive sterilization many Like employer the other man- procedures, patient Act, education and dates the Affordable Care the con- FDA, 2013), See (July http://www.treasury.gov/ Help 2. Birth Control: Medicines You, http://www.fda.gov/ForConsumers/By connect/blog/pages/continuing-to-implement- Audience/ForWomen/FreePublications/ucm the-aca-in-a-careful-thoughtful-manner-.aspx. (last 7, 2013). 313215.htm visited Nov. The announcement did not mention the con- mandate, traception already which was July Treasury Department In announced 3. effect. We postponement assume that the one-year delay implementation in the of the employer mandate has no effect on the employer so-called mandate. See Mark J. mandate; contraception government Mazur, Continuing Implement the ACAin a not advised otherwise. Manner, Treasury Careful, Thoughtful *8 organ- (June 2010). charities and social-service 34,552 34,538, Fed.Reg. izations; nonprofits; faith-based other are Finally, religious employers some managed closely held businesses for-profit, mandate, exempt contraception from the or mission in accordance with 147.130(a)(1)(iv)(A), § but see 45 C.F.R. creed. initially defined “religious employer” was narrowly: quite outcry to the from responded HHS by establishing a employers left-out purposes of these “religious employer” [for [A] certain “safe harbor” for non- contraception temporary exemption pending. Becket Fund for proliferation currently See The prompted a mandate The Religious Liberty, HHS Mandate seeking exemptions on by employers lawsuits Information Central, http://www. Thebecketfund.Org, grounds. By more religious-liberty one count becketfund.org/hhsinformationcentral. challenging the mandate than 70 suits profit religious organizations not covered ance carrier and the insurer issues a sepa- exemption. Group Health rate policy with the mandated coverage. Plans and Health Insurance Issuers Relat- The accommodation organiza- is limited to Services, ing Coverage of Preventive following tions meet require- Eventually Fed.Reg. agency at 8728. ments: proposed “religious a revised definition of (1) organization opposes The providing employer” and an “accommodation” of a coverage for any some or all of contra nonprofit religious organi-
broader class of ceptive required services to be covered objections zations with to the mandated 147.130(a)(1)(iv) § under on account of coverage. proposed The new were rules religious objections. 6, 2013, February final form on see Cover- (2) organization operates The as a non- age Services, of Certain Preventive profit entity. Fed.Reg. published in final form on (3) organization The holds itself out as a 39,870, July Fed.Reg. see 78 religious organization. August 1, became effective see id. (4) self-certifies, organization in a revised, exemption As drops the first form and specified by manner the Secre- requirements three of the earlier definition tary, that it para- satisfies the criteria in of “religious employer,” but the change is (b)(1) graphs through of this sec- exemption’s intended to alter tion .... scope. “Religious employer” is now de- 147.131(b). § Notably C.F.R. for our organization fined as “an organized that is purposes, neither the final religious-em- operates nonprofit entity as a and is ployer exemption nor the accommodation 6033(a)(3)(A)(i) referred to section applies to for-profit employers with consci- (iii) Internal Revenue Code of entious religious objections providing 147.131(a). § as amended.” 45 C.F.R. coverage. mandated The cross-reference is the tax exemption integrated churches and their auxilia- C. The Plaintiffs ries, conventions or associations 1. The Kortes and K L& Contractors churches, and exclusively religious ac- Cyril tivities of orders. See 26 and Jane operate U.S.C. Korte own and (iii). 6033(a)(3)(A)(i), (“K § Luitjohan Contractors, Korte & HHS has ex- Inc. & plained Contractors”), L simplified that “the and clarified a construction company religious employer Highland, definition of located in does not Illinois. K & L Con- expand the religious employers approximately universe of tractors has 90 full-time that qualify exemption beyond employees, for the belong 70 of whom to a union that sponsors was intended the 2012 final regu- plan. their health-insurance Coverage lations.” The company provides of Certain plan Preventive health-care Services, Fed.Reg. 39,874. for the remaining In 20 or other so nonunion em- words, exemption ployees. Together, Cyril remains limited to and Jane own “[hjouses worship about integrated and their 87% the stock of corporation *9 auxiliaries.” Id. and are only Cyril its directors. is the president secretary and Jane is the rule, Under the revised certain nonprofit company. directors, As they officers and religiously employers may affiliated re- company set all policy. ceive an essentially, an “accommodation”— attempted whereby workaround the ob- The Kortes are Catholic and follow the jecting employer gives notice to teachings its insur- regard- of the Catholic Church hand, concep- grave wrong. human life from moral On the other sanctity ing wrong- and the moral following teachings tion to natural death of their faith and abortion, sterilization, and the fulness refusing comply financially would devas- drugs and artificial of abortifacient use K L tate & Contractors and the Kortes as contraception.' They seek to
means of owners; per day per employee, its at $100 company in accordance with manage their monetary penalties would total In August faith commitments. their $730,000per year. final- contraception mandate was
when responded The Kortes to the conflict ized, that their then- the Kortes discovered legal religious between their and duties in plan covered sterilization existing health First, ways. they promulgated two ethical contraception coverage they did and — L guidelines for K & Contractors memori- they carrying. not realize were Because alizing the faith-informed moral limitations their providing coverage conflicts with company’s provision on the of health-care convictions, they began to investi- benefits, including inability provide its plans with the gate alternative health-care -abortion, coverage insurance abortifa- terminating existing plan their intention artificial drugs, contraception, cient and substituting one that conforms to the Second, K sterilization.5 the Kortes and & of their faith. requirements L Contractors filed suit the Southern contraception stood in The mandate religious exemp- District of Illinois for a way. company’s existing their health- from mandate. tion January plan care was set renew on the, triggering requirements of the 2. The Grotes and Grote Industries large penalties mandate and the financial Family manages The Grote owns and they if possible enforcement actions Industries, Inc., a manufacturer of Grote comply. did not As the Kortes understand headquartered in safety systems vehicle religious obligations, providing Kortes, Madison, coverage mandated facilitate a Indiana.6 Like the would counseling, except company’s guidelines are in the limited cir- 5. The ethical as fol- physician cumstances where a certifies lows: procedures drugs sterilization or certain faith, 1. As adherents of the Catholic we contraceptives being commonly are used as teachings hold to the of the Catholic Church prescribed with the intent to treat certain regarding sanctity life from human conditions, medical not with the intent conception We to natural death. believe that prevent pregnancy, vi- or terminate without actions intended to terminate an innocent hu- olating our beliefs. abortion, including man life abortion-in- ducing drugs, gravely sinful. We also Family plain- 6. includes individual The Grote III; teaching Grote, to the Catholic re- adhere Church’s D. William Dominic tiffs William Grote, Jr.; immorality Grote, IV; garding the of artificial means of Walter F. Michael R. Grote, III; Grote; contraception and sterilization. W. Frederick and John R. equal together family Together 2. As shareholders who with other members Grote. controlling Luitjo- plaintiffs, fully own a interest in Korte & own Grote not named as Contractors, Inc., Industries, Inc., manag- han we wish to conduct the which in turn is the Industries, LLC, ing ... in a manner that does not violate member of Grote business reference, manufacturing For ease of our faith and values. firm. Luitjo- companies as "Grote Accordingly, we and Korte & we refer to the two Grote, Contractors, for, arrange William D. III is Chair- han Inc. cannot Industries.” Grote, for, facilitate, CEO; pay provide, man William Dominic IV is or otherwise Officer; employee coverage Operating Wal- support plan health President and Chief member; sterilization, abortion, Grote, Michael contraceptives, F. Jr. is a board abor- ter Treasurer; W. Fred- tion-inducing drugs, R. Grote is the Assistant related education *10 Family claim. In both plaint due-process the Grote are Catholic adds members of plaintiffs prelimi- the moved for a in ac- cases they manage Grote Industries suit, commitments, nary injunction day filing the after cordance with their focusing primarily though exclusively not including téaching regard- moral Catholic their RFRA on claims. ing sanctity of human life and the abortion, wrongfulness of abortifacient In Korte the district court Southern contraception, artificial and sterili- drugs, motion, concluding that Illinois denied the zation. K L not the Kortes and & Contractors had demonstrated a likelihood of success on 1,148 Grote Industries has full-time em- Regarding RFRA claim in merits. locations, ployees including at various particular, judge although held that company pro- States. The the United L the Kortes and K & Contractors are plan vides a health-care self-insured is RFRA “persons” meaning within the annually every and renews on the first may protection, invoke the statute’s year. Family’s Consistent with the Grote contraception mandate does not sub- faith, prior January Catholic stantially religious-exercise burden their employee plan health-care did cover so, held, rights. judge This is because contraception procedures. and sterilization coverage the link between the mandated date, however, Starting on that the re- by and the acts condemned Kortes’ quirements contraception mandate words, religion In is too attenuated. other in. kicked the burden on exercise is insub- Contractors, Like the Kortes and K & L compelled provision stantial because the Family the Grote and Grote Industries contraception coverage too far removed object religious grounds providing on independent from the plan decisions coverage contraception, abortion-induc- participants and con- beneficiaries use ing drugs, procedures. and sterilization traception. The court also found the free- workforce, large But with its full-time unlikely exercise claim to succeed. company penalty faced an annual of almost Grote In the district court in Southern if it comply million did not with the $17 motion, Indiana likewise denied the also mandate. The Grotes and Grote Indus- concluding plaintiffs that the were not like- suit in tries filed the Southern District ly to claim. succeed their RFRA Un- Indiana for a exemption from the Illinois, colleague like her Southern mandate. however, judge the Indiana doubted that a secular, for-profit corporation like Grote Litigation D. The religious-exercise rights Industries has un- complaints Both name the Secretaries judge der RFRA. The did not decide the HHS, Labor, Treasury and the as defen- however, question, concluding instead that declaratory injunctive dants and seek any burden on the Grotes Indus- Grote against contraception relief mandate. insignificant many tries because too in- plaintiffs allege Both sets of that the man- dependent separate provision decisions RFRA; date violates their under coverage prac- of the mandated and the Clause, the Free Exercise the Establish- tices deemed immoral the Catholic Clause, Speech ment and the Free Clause Church. The court also found the consti- Amendment; of the First and the Admin- tutional Procedure Act and Administrative unlikely istrative Procedure Act. The Grote com- claims to succeed. Grote, Secretary; Secretary.
erick III is the and John R. Grote is the Assistant
665 Sec’y Specialties Corp. Illinois reached Wood v. the U.S. from Southern The case Servs., 1, first, January 2013 Human 724 F.3d just Dep’t of before the Health & us (3d Cir.2013). mandate. compliance with the re deadline 377 The D.C. Circuit injunction sought pending an plaintiffs cently closely The held the owners of two on our In a brief order and based appeal. held, for-profit likely to suc businesses merits, provisionally we early review mandate, challenge ceed on a RFRA to the likely to the RFRA claim is held that although companies are not. Gilardi weighs of harms succeed and the balance Servs., Dep’t v. Health & Human religious-liberty rights of in favor of the 13-5069, 1208, 733 F.3d 2013 WL No. Sebelius, v. No. plaintiffs. See Korte (D.C.Cir. 2013). 1, Nov. 5854246 583, 587-88, 12-3841, Fed.Appx. (7th 2012). 6757353, *4-5 Cir. Dec.
WL Analysis II. enjoined of the mandate We enforcement 2012 WL pending appeal. Id. ap These cases come to us on colleague at *5. Our dissented. in peals denying preliminary from orders 2012 WL at *5-6 Id. junctive § relief. See 28 U.S.C. 1291. To (Rovner, J., dissenting). preliminary injunction, moving win a (1) it no party must demonstrate that strength provisional of our deci-
On
remedy
will
adequate
at law and
suffer
Korte,
Indus-
the Grotes and Grote
sion
irreparable
preliminary injunc
harm if a
court
tries returned to the district
denied;
tion is
there is some likeli
asked for reconsid-
Southern Indiana and
of the claim.
judge acknowledged
The
the sim- hood of success on
merits
eration.
ilarity
City Chicago,
between the two cases but declined
651 F.3d
See Ezell
Cir.2011).
(7th
our order in Korte
moving party
to reconsider because
If the
plaintiffs
The
precedential
burden,
had no
effect.
this threshold
the court
meets
injunction pend-
appealed and asked for
weighs
competing
parties
harms to the
Korte,
analysis in
ing appeal. Tracing our
injunction
granted
if an
or denied and
request
enjoined
en-
granted
we
interest. See
public
also considers the
appeal.
pending
forcement of the mandate
Ind.,
Inc. v.
Planned Parenthood
Sebelius,
708 F.3d
853-55
Grote
Health,
Dep’t
Comm’r
the Ind. State
(7th Cir.2013). Again,
colleague
our
disa-
(7th
Ezell,
Cir.2012);
699 F.3d
thoughtful
explain-
dissent
greed, filing
balancing pro
equitable
F.3d at 694. This
contrary position.
Id. at 855-67
ing her
sliding-scale analysis;
ceeds on a
J.,
(Rovner,
dissenting).
likelihood of success on the
greater
merits,
heavily
the less
the balance
briefing,
to full
appeals proceeded
fa
tip
moving party’s
must
in the
harms
argument
May.
at the end of
and we heard
Parenthood,
F.3d at
vor. See
Planned
then,
have reached deci
Since
four circuits
to minimize the costs of a
972. The aim is
sion in similar cases. The Tenth Circuit
Stutter,
wrong
Inc. v. Steak
decision. See
held,
closely
for-profit
that two
busi
held
Enters., Inc.,
F.3d
N Shake
likely
nesses and their owners are
to suc
(7th Cir.2012).
on a
proceeds
Our review
exemption
ceed on a claim for an
from the
legal
review
split standard of review: We
Hobby Lobby
RFRA.
mandate under
novo,
fact for
findings of
Stores,
Sebelius,
conclusions de
Inc. v.
(10th Cir.2013).
error,
equitable balancing
clear
and Third Cir
The Sixth
Ezell, 651 F.3d at
abuse of discretion.
Corp.
Autocam
v. Sebeli
disagree.
cuits
(6th
us,
Cir.2013); Conestoga
666 (1)
Here, are analysis begins legal questions and ends Two contested: secular, on the merits for-profit corporation “per- with the likelihood of success is a (2) strength RFRA; of the RFRA claim. On the son” under does the'con- alone, injunctive preliminary that claim re traception substantially mandate burden warranted; lief is there is religious-exercise rights any no need of the weigh remand for the district courts to If plaintiffs, corporate? individual or injunction Although the claim is equities. questions “yes,” answer to these statutory, protects RFRA First Amend government discharge must its burden of rights, free-exercise and “in First ment justifying the mandate under strict scruti- cases, ‘the likelihood of suc Amendment ny. corpo- conclude as follows: The We often cess on the merits will deter plaintiffs “persons” rate under RFRA ” Alvarez, minative factor.’ ACLU Ill. v. may protection; invoke the statute’s (7th Cir.2012) (quoting 679 F.3d 589 contraception substantially mandate Park, Village Washington Joelner v. religious-exercise rights burdens the of all (7th Cir.2004)). Ill., 878 F.3d 620 plaintiffs; government and the “This is because the ‘loss of First Amend not carried its burden under strict scruti- unquestionably ment freedoms ... consti ny- injury.Id. irreparable (quoting tutes First, however, away pos- we clear some Burns,
Elrod v.
jurisdictional objections.
sible
(plurality opin
troleum franchise
(1963).
1790, 10L.Ed.2d 965
termination of the
challenge franchisor’s
Marketing
Petroleum
under the
franchise
the share
Finally, we note
Act).
Practices
holder-standing rule does not block the
challenging
Kortes and Grotes
Second,
Kortes and
Grotes
aspect
mandate. The rule is an
of third-
no less concrete
intangible
face an
but
doctrine,
party standing
implements
rights.
It
injury
religious-exercise
to their
litigants may
general principle
associa
organizational
is axiomatic that
rights of
sue in federal court to enforce the
tions,
only
act
corporations,
including
*14
Bd.,
others. See Franchise Tax
493 U.S.
agency.
human
See Reich
Sea
through
Seldin,
336,
661;
422
at
110 S.Ct.
Warth v.
(7th
Co.,
413, 417
Sprite Boat
50 F.3d
490, 498,
2197,
95 S.Ct.
45 L.Ed.2d
U.S.
Cir.1995)
abstractions
act
(“incorporeal
(1975);
757;
at
Rawoof,
343
521 F.3d
officers,
owners,
through agents”). As
v. Calumet
Org.
MainStreet
Realtors
closely
corporations,
of their
held
directors
(7th Cir.2007).
742,
City, 505 F.3d
745
company
set all
the Kortes and Grotes
Subject
the rule
exceptions,
to certain
day-to-day opera
policy
manage
generally
that a
cannot
“holds
shareholder
Complying
tions of their businesses.
"with
a
sue for indirect harm he suffers as
result
requires
purchase
them to
the mandate
Rawoof,
injury
corporation.”
of an
to the
(or
contraception coverage
required
Bd.,
(citing
2. The
plans (including
health-care
group
employ
Anti-Injunction
pro
Act
The
er-sponsored plans) and issuers of individ
purpose
of re
that “no suit for
vides
policies.
ual and
health-insurance
group
or collection of
straining the assessment
See id.' The mandate is situated
any
maintained in
court
any tax shall be
public-welfare title of the
Code
Federal
any
person
or not such
person, whether
Regulations
specifically,
part
in the
—more
tax
against whom
was
person
such
containing regulations governing
group
7421(a).
§
The Act
26 U.S.C.
assessed.”
and individual health-insurance markets.
ability
to col
“protects
Government’s
§
See 45 C.F.R.
147.130.
mandate is
*15
by]
lect a consistent stream of revenue!
by
penalties against
backed
stiff tax
em
enjoin
barring litigation to
or otherwise
that fail to
ployers
comply, see 26 U.S.C.
NFIB,
the collection of taxes.”
obstruct
4980H,
4980D,
§§
but there are additional
Winn,
2582;
see also Hibbs v.
132 S.Ct.
consequences
noncompliance, including
88, 103,
S.Ct.
159
124
ERISA enforcement actions
the Secre
(2004);
L.Ed.2d 172
Bob Jones Univ. v.
tary
plan participants
Labor
Simon,
2038, 40
94 S.Ct.
beneficiaries,
§§
see U.S.C.
1185d.
(1974);
L.Ed.2d 496
Enochs Williams
subject
Noncompliant health insurers are
Co.,
Packing
Navigation
&
We
(and
regu
the scheme must
understood as
§
term “tax”
the text of 4980D
also
latory
than
4980H,
punitive
rather
revenue
§in
re-
alternative “shared
States,
raising. See Robertson v. United
sponsibility payment”
employers
for
that
(7th Cir.1978) (the
582 F.2d
1128
drop
go
employee
or otherwise without an
Anti-Injunction
apply
Act does
to “the
not
plan).
language Congress
health-care
The
tax”).
purely regulatory
exaction of a
The
ordinarily
to describe an exaction is
uses
§
obvious aim of
4980D is not to raise
of whether it meant the
best evidence
revenue but to achieve
NFIB,
compliance
broad
Anti-Injunction Act to apply. See
regulatory regime through
with the
deter
Congress
Other features of confirm that tions on the see 4980D based 4980D(c), key § provision penalize employ- is meant to indication U.S.C. not a tax. noncompliance payment penalty, ers for with the various is a (“[S]cienter NFIB, eral applicability.11 at 2595 re Smith altered the statutes, typical punitive then-prevailing quirements standard of Sherbert v. punish often wishes to Congress Verner, 406-07, because U.S.
only
intentionally break the
those who
Yoder,
and Wisconsin v.
Anti-Injunction Act.
In Employment substantially religious that burden Smith, Oregon Human Resources generally even the law is neutral and 872, 883-90, 494 U.S. if can applicable, unless the sat (1990), Supreme L.Ed.2d 876 Court RFRA isfy compelling-interest test. religious guaranteed held freedom represents congressional judgment by the Free Exercise Clause of the First insufficiently protec the rule of religious not ex- -Smith require Amendment does emptions facially gen- religious liberty.12 Congress laws of tive of filled neutral provides, hibiting U.S. perti 11. the free exercise thereof....” The First Amendment I. amend. part: "Congress Const, nent shall make no law re specting religion, pro- an establishment or Congress's findings purposes in enact- ing RFRA are as follows: Any religious practices “person accom- Id.13 whose by expressly “requiring] gap neutrality.” ‘may than RFRA rather violation of modation burdened Prisons, Bureau O’Bryan v. a claim or defense assert that violation as (7th Cir.2003). 399, 401 judicial proceeding appro in a and obtain ” Espirita, 546 U.S. priate relief.’ O Centro general rule is as follows: RFRA’s (quoting U.S.C. religion protected Free exercise of 2000bb-1(c)). § (a) general In substantially not Government shall retrospectively pro RFRA applies religion exercise of person’s burden law, spectively to “all Federal and the if results from a rule of even the burden law, implementation of that whether statu except provided general applicability, as otherwise, tory adopted and whether (b) of this section. subsection or after” its effective date. before exception § 2000bb-1. The is as U.S.C. 2000bb-3(a). § Prospective appli U.S.C. follows: qualified by cation is the rule that “stat
(b) Exception cannot Congress utes enacted one bind substantially burden may
Government
free to
Congress,
a later
which remains
only if it
person’s
religion
statute,
exercise of
repeal
exempt
the earlier
duplication
demonstrates
statute, to
current statute from the earlier
person—
to the
burden
statute,
modify
apply
the earlier
or to
(1)
compelling
Dorsey
is in furtherance of a
earlier statute as modified.”
—
governmental’interest;
States,
-,
United
(2012).
(2)
2321, 2331,
to the “free prima Once a RFRA claimant makes a 2000bb(a)(l), § ex- right,” unalienable id. application facie case that the of a law or ordinary law. isting prior to and above regulation substantially burdens his reli a “sweeping ‘super- RFRA is structured as to the gious practice, burden shifts statute,’ cutting across all other federal government justify the burden under (now future, specifical- unless statutes scrutiny. Espirita, O Centro strict modifying their reach.” ly exempted) and “Congress’s 1211. S.Ct. Paulsen, A RFRA Runs Michael Stokes legislate compelling express decision Through Religious It: Freedom and the that RFRA chal interest test indicates (1995). U.S.Code, 249, 253 lenges adjudicated should in the same 56 Mont. L.Rev. interpretation” It a rule of and “an is “both constitutionally appli manner as mandated supervision general legislative exercise of Id. at cations the test....” agencies, pursuant over federal enacted Thus, litigation, 1211. in RFRA as S.Ct. gives powers each of the federal rise litigation, “the bur First Amendment agencies in the first legislation preliminary injunction stage at the dens Laycock & S. place.” Douglas Oliver 429, 126 track the burdens at trial.” Id. at Thomas, Religious Free- Interpreting Act, 73 Tex. L.Rev.
dom Restoration Corporations as RFRA 1. For-Profit (1994); Quinn see also Nicholas Rosen- ” “Persons kranz, Statutory Federal Rules Inter- 2085, 2110 pretation, 115 . Haev. L.Rev. prohibits rule general RFRA’s (2002) (explaining generally the function of substan placing federal statutory interpreta- applicable rules person’s tial on “a burdens tion). justification, compelling absent religion” short, if the least only then the burden is operates In RFRA kind furthering compel remedy the inevitable clashes restrictive means utility objective. originally As ling governmental freedom and the reali- between state, enacted, of reli RFRA defined “exercise of the modern welfare ties *19 religion “the exercise of under pervasively nearly gion” and touches regulates to the Constitution.” economic life. First Amendment every aspect of social and 103-141, § No. 107 Stat. Berg, Congress Hath Pub.L. See Thomas C. What (1993).. Congress amended the defi Wrought? Interpretative An Guide to the Act, nition in 2000 with the enactment Restoration Religious Freedom and Institutionalized Religious Land Use Judges (1994). L.Rev. 25-26 Vill. (“RLUIPA”), in the help 42 U.S.C. a court needs is awk- Persons Act Where Congress provides ward case where no the definitions in seq., making §§ 2000cc et definition, particular but the definition The term “exer- the two uniform. statutes § not to fit. There it U.S.C. seems religion” in RFRA is now defined cise of that the “unless the con- qualification is definition of “re- by cross-reference to the job indicates otherwise” has a real text “The term ligious exercise” RLUIPA: do, forcing in excusing the court from any includes exercise of ‘religious exercise’ a square peg a into round hole. by, religion, compelled or not whether point The at which the indication of to, system central a belief.” meaning becomes insistent 2000bb-2(4). particular 2000cc-5(7)(A), §§ This Id. enough poor to excuse the fit broad, undeniably very so the definition is a matter of judgment.... course religion” term “exercise of should be un- in generous 200, 113 derstood a sense. Id. at S.Ct. 716. in RFRA Dic- Nothing suggests that the “person.” RFRA does not define This tionary “person” Act’s definition of is a brings Dictionary play.14 Act into The “poor statutory fit” with the scheme. To expressly corpo- definition there includes Supreme colloquialism, use the Court’s in- determining meaning “In rations: cluding corporations in the universe of any Congress, Act of unless the context “persons” rights under RFRA is not otherwise[,] ‘per- indicates ... the word[ ] “forcing square peg like into a round corporations, compa- son’ ... inelude[s] corporation just special hole.” A Id. nies, associations, firms, partnerships, soci- organizational form of association. No one eties, joint companies, stock as well as that organizational doubts associations can ” § 1 (emphasis
individuals....
U.S.C.
engage
religious practice.
govern-
added). By operation of this omnibus defi-
accepts
ment
corporations
some
—reli-
nition,
“person”
the term
in RFRA in-
gious nonprofits
religious-exercise
—have
in-
corporations,
cludes
unless the context
rights under both RFRA and the Free-
dicates otherwise.
this,
As
Exercise Clause.
evidence
contraception
exempts
mandate
class of
To determine whether the context “indi-
religious organizations
i.e., churches and
otherwise,”
—
Supreme
cates
Court has
auxiliaries,
integrated
see 45 C.F.R.
stray
instructed us not to
too far from the
147.131(a)
§
or not
conduct
—whether
statutory text.
See Rowland
Calif.
(as
corporate
their activities
form
Colony,
Advisory
II Men’s
Men’s
Unit
do).
many of them
HHS also extends its
Council,
194, 199-200,
“accommodation” to a broader
set
reli-
(1993).
716,
preme Court’s decision
right
profess
to believe and
Presiding Bishop
the Church
absolute. See Bob Jones Univ. United
Amos,
Latter-day Saints v.
Jesus Christ
(the
States,
603,
461 U.S.
S.Ct.
2862,
327,
L.Ed.2d
107 S.Ct.
483 U.S.
pro
“an
Free Exercise Clause is
absolute
(1987).
why.
do not understand
We
against governmental regulation of
hibition
rejected an Establishment Clause
Amos
Sherbert,
beliefs”);
374 U.S.
religious-employer
to Title
challenge
VII’s
(“The
402,
of the Free
677
Religious Exemptions,
category
itself,
46 UCLA
are Hosanna-Tabor
for
(1999).
1465,1505-08
recognized
right
L.Rev.
of churches to choose
understood)
their
(broadly
ministers
own
aspect
and intuitive
of reli
One obvious
ministerial,
adopted
and
a constitutional
ex
gious liberty
right
is the
of conscientious
ception
regulating
to laws
employment dis
objection
regulations
to laws and
that con
crimination,
705-06,
see
at
id.
and the
prescribed
proscribed
flict
conduct
cases,
church-property
see Serbian E. Or
Sherbert, Yoder,
by an
faith.
adherent’s
thodox Diocese
the U.S. & Can. v.
are the
in
paradigm
and Thomas
cases
this
Milivojevich,
696,
2372,
426 U.S.
96 S.Ct.
In
category.
Seventh-day
Sherbert a
Ad
(1976);
plained Hosannctr-Tabor:
plications
church-autonomy
of the
doc-
Requiring a church to accept or retain
By
exemptions
trine.
their terms the
minister,
an unwanted
or punishing a
religiously
employers,
limited to
affiliated
so,
failing
church for
to do
upon
intrudes
light
a limitation that makes sense in
employment
more than a mere
decision.
the rationale for the rule. The exemption
Such action interferes with the internal
categorical,
contingent;
there is no
church,
governance
depriving
interests,
balancing of competing
public or
church of control over the selection of
words,
private.
applies,
In other
where it
personify
By
those who will
its beliefs.
church-autonomy principle operates
minister,
imposing an unwanted
complete immunity,
very nearly
so.
infringes
state
the Free Exercise
strong
jus-
Such a
principle
hands-off
isn’t
Clause,
protects
which
organizational
tified for
associations that
religiously
are not
affiliated.
group’s right
shape
its
faith
own
through
appointments.
mission
its
Ac-
contrast,
In
judicial
remedy
cording
power
the state the
to deter- RFRA is both
and more
broader
flexible.
mine which individuals will minister to
such,
It covers
organizations as
the faithful also violates the Establish-
it
stop
remedy
but
does not
there. The
Clause,
prohibits govern-
any
ment
available to
objec-
sincere
Berg,
Voluntary
16. See also Thomas C.
The
Churches Matter? Towards an Institutional
Principle
Now,
Autonomy,
Clauses,
and Church
Then and
Understanding
Religion
53 Vill.
(2004);
2004 BYU L. Rev. Gerard
Lund,
(2008);
Christopher
C.
In
L.Rev. Bradley,
Autonomy
V.
Church
Constitu-
Exception,
the Ministerial
90 N.C.
Defense of
State?,
tional Order: The End
Church and
Wasserman,
(2011);
L. Rev. Howard M.
(1989);
Brady,
49 La. L.Rev. Kathleen A.
lurisdiction,
Prescriptive
Adjudicative Jurisdic-
Religious Organizations and Free Exercise:
tion,
Exemption,
and the Ministerial
160 U. Pa.
Smith,
Surprising
Lessons
L.
BYU
(2012).
L.Rev. PENNumbra 289
(2004);
Garnett,
Rev Richard W.
Do
organizations
tor—individuals
alike— We acknowledge
novelty
ques-
organizational
applications
its
tion;
are not
Supreme
Court has never consid-
limited
religiously.
organiza-
affiliated
ered whether a for-profit corporation may
exemption
tions. The
is.comprehensive in assert a free-exercise claim.
Hobby
—
it applies across the
Stores,
United
Lobby
States
Sebelius,
Inc. v.
Code and
Regulations
-,
Code Federal
Sherbert, both of which involved claimants
who
jobs
lost their
refusing
for
to work on
That’s enough to
matter,
the
resolve
but
days
in ways
that would violate their
it’s worth briefly exploring whether
Thomas,
faith. See
450
U.S. at
animating
RFRA’s
purpose provides a clue
1425; Sherbert,
at
U.S.
399-
that it is not meant
secular,
to apply to
for- 400,
We reiterating two doctrinal ment benefits. The held that Court Thom points (1) we made a ago: moment the as and Sherbert could not be compelled Free Exercise Clause protects not just choose between their livelihoods and their belief and profession but also religiously Thomas, faith. 450 U.S. at conduct; motivated and individuals (“Here, and S.Ct. Sherbert, inas the em organizations incorporated or ployee put was to a choice fidelity —whether between not—can religion. exercise It’s common to religious work; belief or cessation of the ground nonprofit corpora- impact coercive on Thomas is indistin tions religion exercise in the guishable sense that ”); Sherbert, from Sherbert.... their activities are religiously (“The motivated. [un So unless there is something disabling employment compensation] forces ruling about mixing profit-seeking [Adell Sherbert] choose between follow practice, it faith-based, follows that a ing for- the precepts of religion her and forfeit profit corporation can claim ing benefits, free-exercise hand, on the one and aban protection extent aspect that an doning one of the precepts of religion her its conduct religiously motivated. work, to accept order other maintaining interest public broad correct
hand.”)-
If
order,
high
of such
system is
earning
sound-tax
marketplace
entering the
pay-
conflict
belief in
then
rights,
free-exercise
money forfeits
no
resist-
basis
of taxes affords
been
ment
have
would
Sherbert
Thomas
ing
tax.
differently.
decided
Brown, 366 U.S.
In
260, 102 S.Ct.
Id.
Braunfeld
L.Ed.2d
600-02, 81 S.Ct.
Braunfeld,
merchants
Like the
a free-
brought
(1961),
merchants
Jewish
in farm-
engaged
was
in Lee
farmer
Amish
Pennsylvania’s
challenge against
for subsis-
furniture-making not
ing and
at a
law,
them
put
Sunday-closing
moneymaking
If
profit.
but
tence
on their
disadvantage based
competitive
claim, foreclose the
enough were
alone
profit-making
if
Again,
Sabbath.
the bur-
addressed
have
would
Court
merchants
disqualify the
enough
was
pub-
rights or
den,
free-exercise
on his
surely
claim,
Court
bringing
administration
in the sound
interest
lic
Instead,
not.
It did
so.
have said
would
Instead,
system.
Security
Social
rejected
addressed
the Court
*25
and
review
plenary
the claim
gave
Court
Id. at
the
on
merits.
claim
free-exercise
deny
ex-
to
an
reason
compelling
a
found
608-09,
1144.
81 S.Ct.
emption.
Lee, 455 U.S.
States
In United
categori-
from
that far
show
These cases
(1982), an
1051, 71 L.Ed.2d
102 S.Ct.
from
excluding profit-seekers
cally
exemp-
a
sought
farmer
Amish
Su-
right,
of the free-exercise
scope
withhold
obligation
from
tion
their claims
has considered
Court
preme
employ-
his
Security taxes for
pay Social
merits,
exemptions
granting
on the
farm
on his
worked
ees,
who
coreligionists
compel-
on
not others based
some
254-55,
shop.
Id. at
carpentry
in his
test.
ling-interest
holds
religion
Amish
The
1051.
102 S.Ct.
community
that members
concluding
relies on
government
The
needy
el-
own
for their
provide
must
position
its
support
in Lee as
statement
Security system ex-
The Social
derly.
Id.
incompatible
profit-making
objectors
self-employed
empts
rights:
free-exercise
asserted
so
farmer
employers,
not
but
have been
courts
and the
Congress
Id.
exemption.
right to
a constitutional
from the
flowing
needs
sensitive
held
Court
The
102 S.Ct.
Clause,
every person
but
Free Exercise
in the social
participation
that “compulsory
all the burdens
shielded
cannot be
free
the[ ]
interferes with
security system
aspect of
exercising every
incident
Id. at
the Amish.
rights” of
exercise
religious beliefs. When
practice
right to
concluded
the Court
1051. But
into
enter
particular
sect
of
followers
in the finan-
public interest
strong
that the
a matter
activity as
commercial
.sys-
Security
of the Social
cial soundness
on their
choice,
they accept
limits
the farmer’s
enough
defeat
was
tem
conscience
as a matter
conduct
own
exemption:
claim an
superimposed
are not to
and faith
if
function
could not
system
The tax
binding
statutory schemes
challenge
allowed
were
denominations
activity.
in that
on others
payments
tax
because
system
the ...
add-
(emphasis
S.Ct. 1051
Id. at
that violates
in manner
spent
were
ed).
Because
religious beliefis]....
apparently reads this
jurisprudence
corporate
constitutional
passage
foreclosing all religious-exer-
rights suggests a nonprofit limitation on
cise
arising
claims
in the course of com- organizational
rights.
free-exercise
Prior
activity merely
mercial
because the context
Smith,
and continuing
present
to the
is commercial.
reading
That
is both un-
day, the Court has held
corporations
sound and extraordinary. Unsound be- may claim some but not all constitutional
,
cause it
nullify
would
the rest of the
rights. See Darrell A.H.
Guns,
Miller
opinion,
Court’s
which considered the Am-
Inc.:
United,
Citizens
McDonald, and the
ish farmer’s claim on the merits even Future
Corporate Constitutional
though his activities were for profit;
the Rights, N.Y.U. L.Rev.
908-11
commercial
did
context
not defeat
cases).
(collecting
claim. And extraordinary
because it
example,
For
long before Citizens Unit
would leave religious
wholly
un-
ed reinvigorated the political-speech rights
protected in the commercial sphere. At
of corporations, see Citizens United v.
bottom,
government’s
argument
FEC,
558 U.S.
premised on a far-too-narrow view of reli-
(2010),
L.Ed.2d 753
the Court confirmed
gious freedom: Religious exercise is pro-
corporations
have free-speech rights,
tected in the home and the house of wor-
see, e.g., Bd.
Trs.
the State Univ.
ship
beyond.
but not
Religious
people do
Fox,
N.Y. v.
practice
their faith in that compart-
106 L.Ed.2d
(1989);
Pac. Gas & Elec.
way;
mentalized
free-exercise rights are
Co. v. Pub.
Cal.,
Utils. Comm’n
not so circumscribed.
*26
903,
106 S.Ct.
(1986)
teenth Amendment.
Grosjean
v. Am.
For the sake
completeness,
of
Co.,
we note Press
233,
297
444,
U.S.
244, 56 S.Ct.
as well that nothing in the
general
Court’s
(1936);
682 prior whether 578, to determine task 164 Sandford, U.S. Rd. Co. Tpk.
ton closely a (1896). it was established Smith 198, 41 L.Ed. 592, 17 S.Ct. not as- could Riggs, held, corporation for-profit v.Co. Ins. Nw. Nat’l But see Life not so 126, It was L.Ed. claim. 255, a free-exercise 243, sert 203 U.S. L& that K th[e] to in (“The conclude liberty referred We established. of liberty “per- are Grote Industries Amendment Contractors [Fourteenth] theOn artificial, persons.”). of RFRA.17 natural, meaning not within sons” ex- the Court hand, to Smith prior other Amend- Fifth corporations cluded Burden 2. Substantial self-incrimination, against privilege
ment
is whether
States,
question
Our next
v. United
see Wilson
substantially bur
(1911),
mandate
contraception
55 L.Ed.
383-84, 31 S.Ct.
religion.
see
privacy,
right
plaintiffs’
exercise
emerging
dens
Co., 338 U.S.
means
religion”
v. Morton Salt
that “exercise
United States
Recall
(1950).
not
357, L.Ed.
religion,
whether
“any
70 S.Ct.
to,
system
a
central
by, or
compelled
theo-
unifying
yield
do
cases
These
§ 2000cc-
42 U.S.C.
belief.”
but
rights,
constitutional
ry
corporate
added).
minimum,
At a
5(7)(A) (emphases
might
language
some
contains
Bellotti
gov
when
exists
burden
a substantial
decisional
general
suggest
read to
person
compels
ernment
guar-
personal’
‘purely
“Certain
approach:
fun
odds with
undeniably at
acts
“perform
com-
against
privilege
antees,
as the
such
religious beliefs.”
[his]
tenets
damental
self-incrimination,
unavailable
pulsory
But
Yoder,
92 S.Ct.
be-
organizations
and other
corporations
also arises
religious exercise
on
particu-
a burden
function’
‘historic
cause
substantial
“put[s]
pro-
to the
when
limited
has been
guarantee
lar
modify his
n.
at 778
an adherent
pressure
of individuals.”
tection
his beliefs.”
States
to violate
United
(quoting
behavior
98 S.Ct.
1425;
Thomas,
*27
White,
U.S.
(1944)).
Miller,
this:
And
v.
88 L.Ed.
also Nelson
see
is
guarantee
Bryan, 523
particular
(7th Cir.2009);
Koger
or not
“Whether
corpo-
Cir.2008).
(7th
Construing
or is unavailable
personal’
‘purely
F.3d
depends
RLUIPA,
other reason
have
for some
we
rations
parallel provision
of
purpose
nature, history, and
gov
upon
law,
or other
regulation,
that a
held
provision.”
constitutional
particular
substantially
burdens
command
ernmental
elaborated.
has never
direct,
But the
Id.
Court
pri
it “bears
if
religious exercise
for
responsibility
mary, and fundamental
parse
don’t need
Ultimately, we
... effec
religious
rendering
[a]
rights too
corporate constitutional
on
cases
Liberties
tively impracticable.” Civil
here with
confronted
finely. We are
Chicago,
City
Believers
Urban
Our
interpretation.
statutory
of
question
of
religious commit-
to their
that conforms
corporations that
ner
We deal
two
here
be the
normally will not
same
managed by the
ments.
closely held and
both
are
large publicly traded
when
comes
it
ex-
case
As we have
them.
that own
families
are the
hallmarks
corporations, two
Gjrotes
controlling
plained,
Kortes
control
ownership from
separation
company
set all
and directors
shareholders
1A
See
directors.
boards
multimember
the activities
personally
direct
policy
such,
Cyclopedia
they
in a
Fletcher,
corporations; as
Fletcher
Meade
their
William
rev.).
(2006
§ 70.10
Corporations
in a man-
operate their
position to
businesses
Law
(7th Cir.2003).
F.3d
The same
ical views or
personal
code).
moral
understanding applies to RFRA claims.
These are factual
inquiries within the
court’s authority and competence. But we
Importantly,
the substantial-bur
agree with our colleagues in the Tenth
inquiry
den
does not invite the court to
Circuit that the substantial-burden test un-
determine the centrality of
der RFRA focuses primarily on the “inten-
practice
faith;
to the adherent’s
RFRA is
sity
the coercion applied
govern-
explicit about that. And free-exercise doc
ment to act contrary to [religious] beliefs.”
trine makes it clear that the test for sub
Hobby Lobby,
684 a challenge to free-speech rejected fines, essentially worth ruinous means comply to be- student-activity fee university’s public to choose and Grotes Kortes forcing the to were collected the funds allocated fol- cause and companies saving their between ba- viewpoint-neutral on groups faith. student teachings of moral lowing the “ impression sis, mistaken removing ‘any substantial and least as direct is at This the speak groups] the [student unemployment of as the denial burden ” objecting student. or the [u]niversity’ and in Sherbert benefits compensation (quoting 1346 120 S.Ct. 529 U.S. at to withhold Thomas, obligation the and (cid:127) & Visitors Univ. v. Rector Rosenberger in Lee. Security taxes of pay Social and Va., 115 U.S. of tack a different takes government The (1993)). cases These L.Ed.2d man the arguing question, this on en- governmental questions about raised is in religious exercise on burden date’s (Zelman) un- and religion dorsement decision employee’s an because substantial (Southworth). degree speech wanted purchase to coverage insurance use her to government the between separation “can services or contraception sterilization the was important the funds use of the or Grotes. the Kortes to” be attributed not case, it’s but analysis each constitutional argument, the on same twist a different In here.19 a relevant consideration any bur insists also government the Zel- on misplaced reliance from its Aside plaintiffs’ on den Southworth, government’s man as “substantial” count “attenuated” too is trivial burden cov insistence contraception provision because point of misses the simply nonexistent steps removed several erage is government claim. The religious-liberty use independent decision employee’s employ- thing wrong on the focuses govern support For contraception. —the addresses contraception ee’s use of v. Simmons-Har on Zelman ment relies —and sep- many steps question wrong 153 the 639, 122 S.Ct. ris, 536 U.S. —how for con- paying act employer’s Regents arate (2002), and Board L.Ed.2d de- employee’s and an coverage traception System University Wisconsin it. to use cision Southworth, 120 S.Ct. U.S. (2000). case Neither L.Ed.2d plain- Although point: first To the here. relevant use grounds object on tiffs drugs, contraception, abortifacient school-voucher upheld Ohio’s Zelman saying that sterilization, goes it without Clause Establishment against an program inter- nor inquire about neither they may funds flowed public challenge because em- of their choices private pri- fere through only religious schools They can subjects. these ployees parents. of the students’ choice vate pro- however, being forced do, object to South- 2460. U.S. Wilkinson, suggest- argument the At oral *29 § hold C‘[W]e L.Ed.2d 1020 prelimi- granting first time ed for the between the corridor fits within RLUIPA contraception against the injunction nary face,. Act its the Religion On Clauses: the Clause might Establishment create mandate accom- legislative permissible qualifies as litiga- the too far late That was concerns. by the barred religion that is not Supreme modation argument. The tion to raise Clause.”). government The Establishment Establishment rejected a facial Court has applying argument RLUIPA, an has not advanced parallel— challenge to Clause the Establish- violates in this context exemp- EFRA statutory albeit narrower — ment Clause. Cutter to the States. applicable tion vide coverage insurance drugs for these burden on religious exercise, properly un- and services in violation of their faith. As derstood. explained
we in our order granting an plaintiffs The have prima established a injunction pending appeal, religious- “[t]he facie case under RFRA. The government liberty violation at issue here inheres in justify must the mandate under the com- coverage coerced of contraception, pelling-interest test. abortifacients, sterilization, and related services, not—or perhaps more precisely, Compelling-Interest Test only purchase the later or use of —in RFRA requires the government contraception Korte, or related services.” shoulder the burden of demonstrating that 528 Fed.Appx. 2012 WL applying the contraception “is mandate at *3. least restrictive means of furthering [a] government’s compelling governmental
The
argu-
“attenuation”
interest.”
2000bb-1(b).
§
U.S.C.
posits
ment
that the
loosely
is too
The Supreme
mandate
Court
connected to
the use of
instructed us
contraception
to look beyond
to be
“broadly
a substantial burden on
formulated interests
religious exercise.
justifying
the general
Because several
independent
applicability of government
decisions
separate
employer’s
mandates”
act of providing
“scrutinize[ ] the asserted
harm
coverage
granting specific
mandated
exemptions
an employ-
particular religious
ee’s eventual use of contraception, any
claimants.” O Centro
Espirita,
complicity problem
insignificant
U.S. at
non-
S.Ct. 1211.
words,
In other
existent.
argument
This
under
purports
RFRA’s
to re-
version of
strict
scrutiny,
solve the
question
underlying
must es
these
tablish a compelling,
cases: Does
providing
specific justifica
coverage
tion for burdening
impermissibly assist the
these
commission of a
claimants.
wrongful act in violation of the moral doc-
The compelling-interest
test
trines of the Catholic Church? No civil generally requires
“high
degree
ne
authority
question.
can decide that
cessity.”
Brown
Entm’t Merchs.
—
repeat,
To
judicial
Ass’n,
duty to decide
-,
substantial-burden questions
under RFRA
(2011).
1051; Thomas,
(citations
omitted).
U.S. at
In the free-exercise
S.Ct. 1425.
question
The
context,
for us is not
“only those interests
whether compliance with the contraception
highest order and those not otherwise
mandate can be reconciled with the teach
served can
legitimate
overbalance
claims
ings of the Catholic Church. That’s a
to the free
Yoder,
of religion.”
question of religious conscience for
The of the So- administration financial safety, sound public to threat substantial some sufficiently was a Security system 403, 83 S.Ct. cial at Id. or order.” peace[,] override regard- interest to compelling cannot “a law Finally, 1790. Security with-holding Social high- objection to interest of an protecting as ed 1051. appreciable at S.Ct. it leaves taxes. ... when est order why explained interest vital not has supposedly government The to that damage Lukumi, ranked to be deserves contraception free unprohibited.” (internal quotation to interest akin governmental aas omitted). impor- in order of Security system marks Social assume good. Let’s public to the tance two identifies government The it Even is. argument sake “gen health” “public public interests — assist, government generous with the contra argues that equality” der —and its burden carrying close not come to has interests these mandate furthers ception its cannot achieve demonstrating that it pregnancies, reducing unintended reli- to damaging ways less goals policy in health-care greater parity achieving rights. gious-exercise autonomy of costs, promoting re in their economically and not even Indeed, both government women seri This argument capacities. productive satisfy the to least-restrictive-means tried By scrutiny. strict ously scrutiny, perhaps misunderstands be- strict component of generally, interests so public stating so here. do nearly impossible cause it is the man guarantees government ex- grandfathers, scheme regulatory The scrutiny Strict test. flunk the date catego- will several “accommodates” empts, or close congruity a substantial requires contraception employers —a ries of interest governmental “fit”—between others apply to and does mandate in to further chosen means and the employees). (those fewer than interests governmental Stating the terest. many ex- so grants Since the it makes generality high level at such argue hardly it can already, ceptions is the that the mandate to show impossible plaintiffs.20 these exempting against furthering them. least restrictive means in- many ways Moreover, there are public promote many ways There are without contraception to free crease access all of almost equality, gender health and religious-liberty to the doing damage liberty. them less burdensome The objectors. conscientious rights of gov- a few: have identified plaintiffs apparent a bit. The translate We will “public option” provide can ernment access is to broaden of the mandate aim insurance; tax give it can contraception so that sterilization contraception and free suppliers contraception incentives control over greater might achieve women and services medications provide these accept health. We reproductive in- consumers; give tax it can no cost to interest. governmental legitimate as a contraception consumers centives to of sur- interest qualifies it Whether No doubt there services. sterilization contestable is both importance passing options. other contested. Lee, contrast, Security ex- the Social in Lee In (1982). persons L.Ed.2d 127 self-employed emption for States v. extremely See United narrow. was *31 government
The
has no real response to Circuit reached a similar conclusion. Au
argument.
this
It has not
any
tocam,
made
(“The
effort
WL
*4. In
light
of this obser
vation,
might
we
expected
have
a better
For
reasons,
the foregoing
we ReveRSe
effort
government’s
in the
merits briefing.
and Remand with instructions to enter pre-
We did not get it. The best the govern
liminary injunctions barring enforcement
ment could do was to insist that the least- of the contraception
against
mandate
test
restrictive-means
“has
been in
never
plaintiffs.
terpreted
require
government
private
subsidize
religious practices.”
ROVNER,
Judge,
Circuit
dissenting.
just
That’s
evasion
o'f
Lifting
RFRA.
The
holding
court’s
in these cases is as
a regulatory burden is not necessarily a
remarkable for its reasoning as for its
subsidy, and it’s not á subsidy here. The
result. The Kortes and the Grotes are
plaintiffs are not asking
government
to business
Luitjohan
owners: Korte &
Con
pay for anything. They
asking
tractors is a
firm,
construction
and Grote
relief
regulatory
mandate that
Industries manufactures motor vehicle
coerces them pay
for something
signals,
turn
reflectors, emergency light
—insur-
ance coverage for contraception
ing, and
safety systems.
other
Neither
—on
sincere conviction that
so
doing
violates
company has a declared religious purpose
their religion. They have made a strong
or mission.
subject
Both are
to the full
case that RFRA entitles them to that re-
range of regulatory demands and con
lief.
straints
imposes on all
such businesses. These include the Af
Our
aligns
conclusion
us with the Tenth
(ACA’s)
fordable Care Act’s
requirement
majority
Circuit
and Judge Jordan in dis
provide comprehensive
employers
sent
Circuit,
in the Third
Hobby Lobby,
health insurance to their employees that
1137-44;
723 F.3d at
Conestoga Wood
includes fully subsidized
access
contra
Specialties, 724 F.3d at
(Jordan, J.,
407-15
ceptive care for women who choose to use
dissenting), and in some respects with the
it. The Kortes and the Grotes are Catho
majority opinion in
Circuit,
the D.C.
Gilard
and,
lic
consistent with the teachings of
i,
.the endorse, use, or dis- They need not Grotes declare lives. the and Kortes cause the free to remain they contraception; in a manner corporations pense the they run that contraception beliefs, the use of religious against the speak their out with consistent In they wish. that and wherever the views burdens whenever court religion the com- is corporations and exercise short, own on the their imposes the reli- corporations, on as burdens It the plans is pany wholly health undisturbed. of the indi- exercise the obli- and shoulder consciences gious employers, which as the court only that: ACA; Not and owners. the vidual imposed gations religious ex- corporations respect to the attributes with anything say or do need not own, that rights the of their rights among including ercise it beyond contraception to assert, in- as can themselves companies and ser- goods medical other the countless of their beliefs religious by the formed health employee by their covered vices and Kortes the the Because owners. object to nonetheless plaintiffs The plans. contraception, the the use oppose Grotes contraception. use of facilitating the as contracep- to include obligation companies’ facilitating an it as characterize I would health workplace in their coverage tive contraception. use choice to employee’s as a burden understood plans insurance may be inconsistent choice employee’s An and in rights free exercise on the owners’ beliefs, but it the owners’ with free exercise companies’ the turn on choice, does and it not the owners’ any off-limits declares The court rights. their exercise of the substantially burden degree of the and the into nature inquiry religious freedoms. instead, rights; these imposed on burden the made colleagues have My esteemed RFRA terms both the rewriting the the notion possible for best case the jurisprudence, clause free exercise the interferes mandate contraception the ACA it court sufficient declares I be- but rights; free exercise plaintiffs’ comply corporations two the compels rep- holding and rationale court’s its owners lieve which requirement with a and unwarranted unprecedented reason- Thus resent an grounds. object on exer- the free sub- what re-conception mandate of both contraceptive ing that and what constitutes free exercise religion entails stantially burdens cise of companies, the on that exercise. burden a of the individuals substantial a right to strict the mandate subjects highly personal court then court extends it fails that fic- legal scrutiny and concludes a man-made corporation, secular enabling belief demanding standard. no conscience tion that corporation’s It then deems worship. exercise that, in name free So isit contraceptive care duty to cover secu- two has relieved the court of religion, on the burden impermissible statutory obli- corporations lar its own- corporation both rights of to their insurance provide health gation considering so without It does ers. coverage of con- that includes employees on the the burden degree directness female companies’ traceptive care for of their free exercise right plaintiffs’ only reli- Realistically, employees. plain in contravention religion, at stake those gious interests only RFRA, proscribes terms of is the faith owners—their corporations’ itAnd right. burdens contraception. substantial objection source permits plaintiffs to invoke their free facts in hypotheticals these my are of own rights offensively invention; rather than de- the legal provisions are not. *33 fensively, way in a circumscribes 1. Tom Smith is the sole owner and rights Congress given employees, to TS-Co, chief executive officer of a soft- by permitting corporate employers company ware employs more than 50 statutorily-man- rewrite the terms of the people subject and is therefore to the dated health plans they provide to their ACA. sponsors TS-Co a self-insured employees. result, As a employees are left health plan care for employees. its Joe highly important without a form of insur- employee Wilson is an of TS-Co who suf- coverage ance that Congress intended fers from Amyotrophic Sclerosis, Lateral them to have. ALS, commonly as known Lou Gehrig’s
Disease. ALS is a progressive neurode- 1. generative disease that affects nerve cells in the spinal cord; brain and the disease In place today’s order to decision and its destroys motor neurons and with them the import in a perspective, broader I want to ability of the brain to initiate and control begin my analysis by posing hypo- several muscle function. Eventually, the disease illustrating theticals how the court’s ruling leads to total paralysis. people Most with in this might case out in play other factual ALS die of respiratory pneumo- failure or scenarios. Part of responsibility our as an nia, typically within years three to five appellate court is to consider the ramifica the onset of symptoms. precedents tions our will have other litigants. cases and Contraception is the From another employee, TS-Co Smith current focus of litigation nationwide chal learns that accepted Wilson has been into lenging mandate; the ACA’s employer and a clinical trial testing the effectiveness of because duty coverage include embryonic an stem-cell therapy on ALS. h contraceptives in employee plans healt is a devout Smith Methodist who shares women, implicates sexuality, reproduc and United Methodist disapproval Church’s tion as well as religion, might one be research therapies and on stem based tempted to assume that the issues raised embryos. cells derived from human Smith in this case and the holding court’s manage does wish to company’s his confined, if not to case, the facts in this plan way benefit that conflicts with his then to a range narrow beliefs; circumstances. he is although concerned But, out, as points the court health, RFRA applies for Wilson’s he is adamantly op- law, Federal “all implementa and the posed facilitating the use of embryonic law, tion of that whether statutory or oth any way. cells in stem thinks it He unlike- erwise, and adopted whether ly before or af company that the plan will pay health ter” RFRA’s date. 42 effective U.S.C. for the care during Wilson will receive his 2000bb-3(a); § ante 672. The participation trial, court’s clinical but when holding today potential has the to reach he raises plan the issue with the adminis- beyond far contraception trator, and to invite em he learns that under section 1201 of ployers (which to seek exemptions any num the ACA created a new turn ber of federally-mandated employee bene 2709 of section Health Public Service fits to which employer might object (“PHA”)), plan Act health must cover religious grounds. following three the costs of routine patient care associated hypotheticals are why intended to show I clinical involving with trials treatments for think might this The names so. life-threatening cancer other condi- associ- any costs not cover would insurance In 300gg-8. § 42 U.S.C.
tions. in the clinical participation pa- with his expand ated meant was the ACA way, matter, that, practical trial; such participation to and tient access participate unable plan would render Wilson Although might trials.1 clinical routine the costs of Wilson’s in the trial. only cover therapy, cell the stem care associated owner is the Bill Blasdell sole therapy cell the stem costs of and not the Out!, corpo- officer of Get chief executive covering Wil- itself, believes Smith chain of *34 operates a small ration which plan would care, the company son’s routine enact- Prior to stores. outdoor-gear three prac- in a facilitating participation his ACA, company did ment of the objects on he tice which employees; to its insurance health provide grounds. is now Get Out! employees, with but a seek- under RFRA brings suit Smith mandate. employer subject to ACA’s reliev- injunctive relief declaratory and ing member of life-long been Blasdell has to com- obligation company of ing the Christ, Christian Scientist. the Church PHA, insofar 2709 of the section ply with illness is an dogma postulates that Science coverage, of costs associ- requires as it only be can false belief that illusion employing em- trials clinical ated with realigns prayer which through addressed argues Smith therapies. bryonic stem cell with Consistent soul God. one’s with plan health company’s his requiring historically has dis- view, Science Christian care associ- any medical cover costs conventional forms most approved of objects he treatment ated with a Nonetheless, many in practice, medicine. with interferes his grounds on them- have availed Christian Scientists in a manner company wish to run treatments, medical of conventional selves convictions. with his consistent itself years, the church in recent today, Smith on court’s decision Based med- more tolerant conventional become argu- colorable have a would and TS-Co Vitello, See, Sci- Paul Christian e.g., icine. by section coverage required that the ment Modem Truce With Seeks ence Church on their burden imposes a substantial (Mar. 24, Medicine, A20 York Times New Although govern- rights. free exercise 2010). that section argument might have ment life, among was his Blasdell Earlier in compelling interest 2709 is supported embraced who Scientists those Christian therapies development effective in the witnessing But after traditional medicine. such as life-threatening conditions treatment through brutal wife suffer his least-restrictive ALS, on this court’s based premier at a cancer for breast regimen might a court conclude analysis, means center, as a result of only to die medical itself, in lieu of ob- that the mis- from the treatment complications for all pay could costs jecting employers, staff, came Blasdell by the medical steps partic- individual’s with an associated teachings of his believe, meantime, consistent trial. In in a clinical ipation medicine does church, conventional exemption TS-Co an granting was His belief good. than more workplace far harm mean that Wilson’s PHA would 3-5%.”), ranges consistently between adults Society, Cancer Ac- Cancer 1. See American ac- http://http:// Network, available Care Fact Sheet: tion Affordable scan.org/pdf7healthcare/implementa- ("Nearly of cancer Trials 20% Act: Clinical (last tion/factsheets/hcr-clinical-trials.pdf visit- eligible participation in can- patients 7, 2013). trials, ed Nov. among but enrollment cer clinical year reinforced in the following firm, his wife’s which has over 100 full-time em- death, when his ulcerative colitis went into ployees. The Bowers belong to a church remission during prayer-centered treat- which is affiliated with the Southern Bap- ment at a Christian nursing Science cen- tist Convention. The posi- 'Convention’s ter. tion marriage and sexuality may be summarized as follows:
As a result religious convictions, of his Blasdell is adamantly We opposed plan to facilitat- affirm God’s for marriage and ing the use of conventional intimacy man, medical care sexual and one —one his employees. woman, He willing for Get Out! for life. Homosexuality is not a sponsor an employee plan health lifestyle.” “valid alternative The Bible pays for care Christian Science nursing condemns it not, as sin. It however, centers, but he believes company1 that his unforgivable s sin. The same redemption compliance with the ACA’s mandate available to all sinners is available to cover traditional medical care would abe They, too, homosexuals. may become *35 violation of his principles. new creations in Christ.
After Get Out!’s request for an exemp- Baptist Convention, Southern Position tion employer from the denied, mandate is Statement on Sexuality, available at http:// Blasdell and the company bring suit under (last www.sbc.net/aboutus/pssexuality.asp RFRA contending that employer man- 7, 2013). visited Nov. The Bowers’ local date is a substantial burden on the free congregation promotes endorses and exercise of their religious beliefs. Pursu- view; same in the past years, several ant to the court’s today, decision both pastor of their given church has several Blasdell and Get Out! have a would color- sermons condemning same-sex marriage, argument able compliance that with the adoption by gay and parents, lesbian and employer mandate, by facilitating company the repeal of the military’s Ask, “Don’t employees’ use of conventional medical Don’t policy. Tell” The Bowers accept and treatments to which Blasdell opposed on follow their church’s teaching on,homosex- religious grounds, represents a substantial uality. When marriage same-sex was re- burden on his religious freedom and that cently legalized in their state as a result of corporation. of the although And the gov- decision, a Bowers, court knowing that ernment, again, urge would no doubt they a had number gay and lesbian it compelling in pursuing interest employ individuals their and in keeping universal healthcare, access to Blasdell beliefs, their amended the and his firm could this invoke court’s deci- Red Pie employee plan benefits to make sion argument for the that the ACA’s ex- clear spousal insurance benefits are emptions interest, belie that that, and in not available to the spouses same-sex any event, pursue could its employees; Red Pie their as state does not goal through publicly-funded healthcare, prohibit employment discrimination on the credits, individual tax or other means that orientation, basis sexual and because the do not require employers to subsidize em- ACA not require does employers pro- ployee healthcare that is inconsistent with vide coverage insurance employee their own beliefs. spouses, change legally permitted. was Pie, Inc.,
3. Red sells ships and to con- Mr. Mrs. and Bowers become alarmed sumers variety frozen, nationwide a spe- they when learn that one of employ- cialty pizzas. Bill Betty and Ann ees, Jones, Bowers Stan has submitted a request and their three children own operate to take three weeks unpaid under leave ap- the FMLA suit, contending that Act Leave Medical Family and instance would in this may Red Pie plied husband
(FMLA)
and his
that he
so
free
on the
child via
burden
of their
a substantial
birth
constitute
expected
attend
baby
California, bring the
and its
corporation
surrogacy
See 29
child.
either
home,
owners,
bond with
force them
as would
it
2612(a)(1).
Bowers view the
§
ar-
parental
U.S.C.
and facilitate
recognize
a child
conceiving
men
gay
two
idea of
or suffer
as sinful
they view
rangement
that child into
bringing
surrogacy
FMLA for
under
penalties
substantial
to the Lord.
anas
abomination
their home
mandated
The leave
refusing to do so.2
deny
manager to
their office
They instruct
course,
and to
is,
unpaid,
by the FMLA
him that
and inform
request
Jones’ leave
arguably constitute
it
extent
would
in any
can
company
nor their
they
neither
minimal
on Red
burden
no more than
an immor-
such
facilitate
recognize or
way
but
rights;3
free exercise
Pie’s asserted
protests the
in turn
Jones
arrangement;
al
this court’s
readily invoke
Red Pie could
After
rights.
denial,
his FMLA
citing
that the sub-
proposition
for the
decision
further,
the matter
thinking about
not on
burden turns
stantiality of the
troubled
Bowers
so
decide the
,on the
imposed
degree
interference
in their
keep Jones
longer
no
they can
rather
but
religious exercise
company’s
they fire him.
day,
next
employ. The
coercive nature
solely on the
Wages
contacts
Jones
After
is manda-
with which
compliance
FMLA—
*36
La-
Department
Hours Division
significant
litigation
tory
pain
on
against Red
bor,
files suit
Department
Ante at
failure to
so.
for the
do
penalties
contending
FMLA
Pie under
4980D(a)
§§
&
683-84;
26 U.S.C.
see
denied
wrongfully
his
both
Jones was
4980H(a)
(c).
(b)(1),
&
the statute
under
leave
right
parental
potentially
Department
Labor
having request-
retaliation
and fired in
'
next, strict-scruti-
at the
might fair better
29 U.S.C.
See
leave.
ed FMLA
Certainly,
analysis.
ny phase of
2617(b)(2). Red Pie invokes
2615(a)(1);
§§
means of
least restrictive
terms of the
Department’s
to the
RFRA as a defense
may as-
this section
violation of
burdened in
may
as a defense
RFRA
invoked
2. Whether
ais
de
in a
private individuals
a
or defense
a
between
claim
suit
sert that violation
produced
split
a
veloping issue which
appropriate
proceeding and
judicial
obtain
Compare
v.
Hankins
among the circuits.
Tomic, 442
government.”);
against a
relief
Cir.2006) (2-1
96,
(2d
Lyght,
103-04
441 F.3d
F.3d at 1042.
decision)
may be invoked
(holding that RFRA
suit),
(Sotomayor,
at 114-15
a
with id.
in such
L,
employer incurs no
say that an
3. This is
Corp.
Sev
dissenting); Gen.
Conference
Although FMLA
of the leave.
costs as a result
402,
McGill,
F.3d
enth-Day Adventists v.
required to
employer
unpaid,
leave is
Cir.2010);
(6th
Dio
v. Catholic
Tomic
410-12
1036,
(7th
Peoria,
coverage
the ab-
providing health
Cir.
continue
cese of
by
2006), abrogated
grounds Hosan
on other
and condi-
employee
the same
terms
sent
Church & Sch.
Evangelical Lutheran
na-Tabor
work-
were still
apply if he
tions that would
E.E.O.C., - U.S.-,
132 S.Ct.
v.
course,
2614(a)(2),
§
ing,
29 U.S.C.
(2012);
and Sutton
L.Ed.2d 650
n.
having some-
the cost of
employer
bear
must
Ctr., 192 F.3d
Joseph Med.
Providence St.
even
employee on leave
fill in for
one else
1999) (all
(9th
holding that
Cir.
837-43
employee
open
position
a
as he holds
suit).
may
in such
not be invoked
RFRA
leave,
anticipation
his return
however,
doubt,
may
that RFRA
is no
There
2614(a)(1).
employer
respects, the
§
In both
litigation with the
as a defense in
be invoked
employee
to the
assistance
lends considerable
2000bb-1(c)
§
government.
U.S.C.
taking
("A
leave.
religious exercise has been
person whose
families,
supporting
promoting
the De
feres with the free
of religion
exercise
or is
would
partment
strong argument
have
at most a modest
plaintiffs
burden on a
there is no substitute for granting
free
rights,
the court’s rationale
time to parents
leave
at critical times when
subjects a potentially
range
wide
of statu-
their presence is
by
most needed
tory protections to strict' scrutiny, one of
point aside,
children. But that
would a
the most demanding standards known in
court deem the interests underlying the
legal
our
system.
In some ways, this is
sufficiently compelling
FMLA
to constitute
reminiscent of
era,
the Lochner
when an
highest order,”
“interests of the
Wisconsin
employer
claim that
could
the extension of
Yoder,
205, 215,
statutory protections to its workers consti-
(1972),
generally underlying premise One corporations. — 1138, 1147, U.S.-,-, cases these claims advanced the RFRA Kortes (2013). And 185 L.Ed.2d interests, obligations rights, and is that the of these Grotes, owners as the who identical are closely-held corporation of a assert corporations closely-held fact, I have owners. In of their those inway in the religious beliefs their express In they are distinct. previously, argued have corporations, these they run corpo through the business electing to do free exer own that their standing to assert have form, Grotes Kortes and the rate contracep by the burdened rights are cise compa their from separated themselves notwithstanding general tion mandate le independent are corporations nies: standing. See shareholder against rule and obli legal rights entities with gal Aluminium v. Alcan Bd. Franchise Tax individual independent gations 331, 336, 110 S.Ct. Ltd., 493 U.S. Sebelius, F.3d Grote owners. (1990) (exception L.Ed.2d 696 (dissent). (7th Cir.2013) That is the standing “allow[s] rule shareholder sepa create a incorporation: point of direct, interest personal with a shareholder some of person to shoulder legal rate if the even bring suit action in a cause of See Cedric of the business. burdens implicated”); rights are also corporation’s Promotions, King, 533 Ltd. v. Kushner Health & Dep’t v. U.S. see also Gilardi 158, 163, 121 U.S. 1208, 1215-17, Servs., 733 F.3d Human ba (“[I]ncorporation’s L.Ed.2d 198 (D.C.Cir. 5854246, at *6-*7 2013 WL legal distinct is to create a purpose sic 2013) Brown, J.); id. at 1228- Nov. 1, (op of obligations, pow legal rights, entity, (Ed *19-*22 2013 WL those of ers, privileges different dissenting wards, J., concurring part & it, created who who the natural individuals in part). see also it, employs.”); it own or whom Sebelius, F.3d Corp. Autocam I that the say believe This is not (6th Cir.2013), cert. pet’n 623-24 corporations respective interests filed 2013) (No. 13-482); (U.S. Conesto Oct. The fact congruent. and their owners Sec’y, Corp. v. Specialties ga the man- Wood imposed obligations that the *38 Servs., 724 F.3d Human Dep’t Health & whereas it corporation, upon fall the date (3d Cir.2013), cert. 377, pet’n in- 387-88 only the the individual owners—and is (U.S. 19,1993) Sep. 3139 filed, 82 U.S.L.W. dividuals, hold free exer- my view—who in (No. 13-356). here is that means What to wheth- great matters a deal rights, cise which, as corporations two that it is the substantially burdened. rights are er those ACA, pro the must employers covered goes to the merits point that But employees to insurance their standing vide health the rather than of this lawsuit That, turn, contraceptives. covers points court plaintiffs, set as the either the Gilardi, between meaningful distance 9; puts n. also Ante at 667 see out. company 5854246, and Grotes and 1228, at *19 Kortes 2013 WL F.3d at the notion that undercuts plans health (Edwards, J., & dissent- concurring part the Grotes the Kortes and forces proceed I ACA why, And that is part). ing use of contra practice facilitate a corporate to plaintiffs explain, to —the —both object on they ception prevail to which unlikely individual—are —to grounds. their RFRA claim. the merits of
The distinction between a corporation matism if not legal theory. A religious
explains why
its owners
plaintiffs
association is often as well if not better
argued,
today
holds,
have
the court
situated as the individuals who make up
secular,
that a
for-profit corporation pos-
the association to assert the relevant reli
right
its own
sesses
to the free exercise of gious interests:
can speak
association
religion. That novel
way
idea is a
to get
on behalf of
members;
all of its
it- likely
past
problem
people
whose has resources
pursue
legal relief that
leads
object
faith
them to
to the contracep-
not;
individual members do
it can speak
tion mandate
legally
are not
responsible
authoritatively on matters of religious dog
complying
with the mandate: endow ma; may
it
be the association that owns
“persons”
corporate
their
own property and other assets
affected
right religion
exercise
may
which
challenged government action; and in
invoke in
objection
conscientious
to the
many instances, the law or
govern
other
mandate.
It is an unprecedented holding,
ment action being challenged intrudes di
and one I
believe without
legal
logical
rectly on the
worship
collective
activities of
support.
the association itself. E.g., Church
concede,
I
must,
Ias
that the Supreme Lukumi
Aye,
534-35,
Babalu
508 U.S. at
Court has not restricted the invocation of
113 S.Ct. at
(challenged
2227-28
ordi
free
rights solely
individuals,
exercise
nances
practices
restricted
which were
but has
very
allowed—albeit with
little
service);
to worship
central
see also Prim
discussion—houses of
including
worship,
Iglesia
era
Bautista Hispana
Boca Ra
those which
incorporated,
have
to assert
ton,
Inc.
Cnty.,
1295,
Broward
450 F.3d
rights.
such
ante
citing
(11th Cir.2006)
(incorporated church
Gonzales v. Centro Espirita
O
Beneficente
standing
assert,
alia,
had
inter
free ex
Vegetal,
418,
Uniao do
challenge
ercise clause
to local zoning ordi
(2006),
696 corporation, that a to doubt are reasons repre effectively could church
similar nature, rights. has such its judgment whatever rights), free exercise their sent grounds, on other remanded & vacated ac- rights Constitution Not all 2502, 138 L.Ed.2d 1114, 117 S.Ct. 521 U.S. corpora- a are extended person cords to reinstated, 141 F.3d (1997),judgment 1007 recognized has Court Supreme tions. (8th Cir.1998); Presbyterian Church 854 identity has deter- been “[Corporate 518, States, F.2d 870 (U.S.A.) v. United cor- denying decisions in several minative (church Cir.1989) standing (9th had 521-23 rights, constitutional certain porations gov challenge free exercise pursue compulsory against as the privilege such membership); of its surveillance ernment Bank First Nat’l self-incrimination.” Smith, God, v. Inc. Peyote Way Church of 14, Bellotti, 765, n. 778 435 U.S. v. Boston Cir.1984) (5th (incorpo 193, 199 742 F.2d 14, L.Ed.2d 1407, n. 55 1416-17 98 S.Ct. in free stake personal had rated church (1978). explain: went on Bellotti proscribing to statute challenge exercise guarantees “purely personal” peyote, [C]ertain “because and use of possession directly corporations will ... are unavailable statute enforcement the “historic its members organizations with which other because affect the freedom com guarantee professed particular may fulfill function” of mitment”); Scientology Cali of individ- protection Church limited to the been Cazares, White, 1279-80 638 F.2d v. 322 U.S. States v. United uals. fornia Cir.1981) (church (11th standing to had 694, 698-701, [88 1251-52 of its member rights (1944). assert free or not Whether L.Ed. 1542] may- alleging town rights suit ship in civil person- guarantee “purely particular its church and unlawfully harassed or had corporations unavailable to al” or is members). na- depends on the some other reason particu- ture, purpose of the history, and
Still,
religious organization
although a
provision.
constitutional
lar
standing
represent
enjoys associational
members, see
rights of its
the free exercise
Ibid;
Indus.
Browning-Ferris
also
see
Un
Workers
Food & Commercial
United
Inc.,
Vt.,
Disposal,
Inc. v. Kelco
Inc.,
Group,
v.
Local 751 Brown
ion
257, 284-85,
544, 551-53,
U.S.
(1989).
L.Ed.2d
(1996);
Washington
Hunt
L.Ed.2d 758
reviewing
have
struck
I
been
Comm’n,
Adver.
Apple
State
corporations
granting
of decisions
handful
2434, 2441-42, 53 L.Ed.2d
342-44, 97 S.Ct.
(and
matter,
for that
rights
free exercise
Seldin,
(1977);
Warth
case) by how
in this
briefs
plaintiffs’
Perhaps
argument
the best
in
ness,
favor of
or activities
corporation),
according free
rights
corpora
exercise
stressed the core First Amendment inter-
tions is that
right
speech
to free
al
dialogue
est
a robust
on issues of public
ready
recognized
among
has been
those
concern, an
beyond
interest
extends
rights
corporations enjoy.
Citizens
particular
speaker’s wish to express his
Comm’n,
United v. Fed. Election
558 U.S.
views
include the public's right to hear
876, 899-900,
130 S.Ct.
175 his views and those of others. 435
at
(2010) (coll.cases); Bellotti,
L.Ed.2d 753
776-77,
ly individual
Fleischfres
680,
200,
Dist.
15 F.3d
v. Dirs.
Sch.
ser
follow,
likely
it
is one of
I
believe
sons
of
(7th Cir.1994),
a
we set forth
n. 5
constitutional
personal”
“purely
those
religion”
working definition
“general
will not
Court
Supreme
clause that
of the free exercise
purposes
not
corporations certainly
extend
—
-
addressing
beliefs
“any set of
includes
secular, for-profit corporations.
occupying
ultimate concern
matters of
qualifies as a
corporation
fact that a
filled God in tradi
parallel to that
place
Act,
Dictionary
1 U.S.C.
person under
persons.” (quoting Welsh
tionally religious
673-74; Hobby Lobby
1,§
ante at
see
333, 340,
States,
398 U.S.
v. United
1132,
1129,
by no
Stores,
F.3d at
(1970))
1796,
1792,
we came
our
the
corporation should be said to
the
possess
die,
happens when we
and our relation-
same
free exercise of
right
religion
to
obligations
people.
and
to other
ships with
being enjoys in
In
country.
a human
Only
human mind can
such
entertain
extricably
person’s
bound
it is with a
questions.
himself,
world,
origins,
sense of
his
corporation is a
which
legal
A
construct
is, religious
(including
what life
belief
does not have the sentence and. conscience
belief)
lack
is a
of
defining
of such
trait
questions.
such ultimate
“In
entertain
humankind;
this is
we
why
one reason
Marshall,
of Chief Justice
words
component
view it as a core
of individual
invisible,
corporation
being,
is ‘an artificial
liberty
freedom: “At the heart of
is the
existing only
contempla
in
intangible,
right
concept
one’s own
of
define
exis
” Browning-Ferris
law.’
Indus.
tion of
of
universe,
tence, meaning, of
of
of
Inc.,
492
Disposal,
supra,
Vt. v. Kelco
U.S.
mystery
of human life. Beliefs about
284, 109
at
(quoting
at
S.Ct.
2925
Trustees
could not
these matters
define
attrib
Woodward, 17
Coll. v.
U.S.
Dartmouth
of
were
un
personhood
utes of
formed
(4 Wheat.)
(1819)).
518, 636,
tivities).
said,
entirely
I
it
As have
is not
Certainly
agree
profit
I
that the wish to
why
step
necessary
even this
clear to me
automatically
an indi
disqualify
does not
standing
such
given the associational
asserting religious
interests.
vidual
rights,
the free exercise
entities to assert
679-81;
Burstyn,
Joseph
ante at
Inc.
See
least,
But,
members.
at the
those
Wilson,
495, 501-02, 72
v.
343 U.S.
S.Ct.
religious
aby
purpose,
entities are defined
780,
(1952);
Third, bring hypothetical into line with penalized should not be for customers case, question of this the relevant would facts it.''), choosing http://foward.com/ to consume whether be free exercise of the articles/1 52606/constitutional-dilemma-on- might kosher restaurant or its owners some- (last 2013). visited Nov. For birth-control/ below, substantially private how burdened I forth I do not believe reasons set . employee they choice that a restaurant makes to would be. First, purposes that a for of free exercise ego to the extent owners corporation’s claim). identity derive religious principles owners, if the owners have from its what Second, suppose company’s beliefs, degrees diverse of devo- diverse ownership changes. happens What then tion, as to whether and and diverse notions to the beliefs we have attributed to ought .to reflect their corporation how the corporation ownership? based on its Are McRae, religious beliefs? See Harris v. challenges presented such the one in 320-21, at supra, 448 at subject re-litigation every this case time (noting that where individual church change corporation there is a owner- diversity of religious members hold views ship? law, challenged church itself lacks as to Third, corpo- are beliefs claim standing infringe- associational solely rate owners determinative of the rights); on free exercise ment cf. corporation’s religious principles? Sup- Gilardi, 2013 WL pose, example, corporation’s that a (Edwards, J., *22 concurring entirely owners have entrusted the man- part) (noting part dissenting & extent to agement corporation longtime to its theory religious rights corpo- which CEO, public corpora- who is the face of the by requirement rate owners are burdened happens strongly tion and who also to have imposed corporation' with which way held about beliefs inextricably unanimity bound tuns on the corporation should be run. Are beliefs; minority of owners’ “there are no corporation? her beliefs attributable views”). shareholders with different What suppose corpora- Or that the owners of a if, example, corporation’s one of á two professed religious tion have no interest in equal owners is Catholic and the other is way run, corporation in which a but Protestant, Muslim, Jewish, athe- corporation serving focus of the is on ist—are the beliefs one or both attrib- *47 members a particular religion selling — corporation, uted to the and if the beliefs kosher or halal -products, example. food for count, only one which does? Are the See ante at corporation 681. Can the conglomeration
beliefs a or neither? Or religious said to hold the beliefs of its Catholic, suppose both owners are but market, target even if man- its owners and only one of them claims that his beliefs are agers do not? (like by legal requirement burdened some At argument, oral Grote Industries’ here) the at imposed mandate issue on the counsel if ownership conceded that of the company, professes whereas the other ei- company changed, as death and inheri- support ther indifference or for that re- tance, then a might court have to revisit quirement. Are the beliefs of the one the corporation’s nature of the asserted owner sufficient alone to define those of religious why interests. But if is true corporation? the Sepper, See Elizabeth corporation the has its own free exercise Contraception Corporate and the Birth of Conscience, (Wash. rights? By permitting corporation a 17-18 Univ. St. Louis are, religious rights, assert its own we I Legal Sch. of Law Paper Studies Research 13-07-01) think, Series, 2013), saying corporation would Paper (July No. may possess rights independent such http://papers.ssrn.com/sol3/ available at assert; papers.cfm?abstract_id=2289383, 22 Am. what its owners believe and a J. 2014) Pol’y L. (forthcoming change ownership Gender Soc. & itself would theo- (discussing practical retically portend nothing doctrinal difficul- about the status posed by treating corporation ties as alter corporation’s religious interests. holding its also limited has The court closely-held corporations.
today to
provides that “Government shall
RFRA
prag-
are both
that limitation
reasons
substantially
person’s
burden a
exer
company
aWhen
matic and obvious:
if the burden results
religion
cise of
even
number of
by small
managed
owned
applicability,” unless
general
from a rule of
overlap
appreciate
easy
it is
people,
compel
is in furtherance of
the burden
corpo-
owners and
interests of
between the
interest and is the least
ling governmental
Thus,
is owned and
a firm that
ration.
furthering that inter
restrictive means of
religious
in its
family united
operated by a
(b).
2000bb-1(a)
By
§
&
est.
U.S.C.
case for
strongest
presents
beliefs
burdens,
to substantial
its
reference
claim
free exercise
making
type
qualitative
calls for a
as
expressly
RFRA
But if a corporation
here.
presented
challenged
burden that a
sessment of the
Dictionary
rights*because
free exercise
impos
action
statute or other
among
“persons”
suggests
Act
it is
religion.
exercise of
es on an individual’s
right
grants
RFRA
make
below,
long en
I
courts have
As
discuss
claim,
any
if
n.
ante
such
assessments, distinguishing
gaged in such
religious and secular
between
distinctions
indirect,
and between
direct
between
at-679-82,
matter, ante
do not
corporations
meaningful burdens on the ex
minor and
large,
di-
why
corporation
does a
then
today
Yet the court
religion.
ercise
verse,
ownership not have
even public,
inquiry, departing from
rejects any such
how would
rights also? And
free exercise
language
and the
practice
historical
both
be deter-
public corporation
of a
the beliefs
RFRA.
sharehold-
by a vote at the annual
mined —
lead in
Following the Tenth Circuit’s
meeting,
example?
ers’
majority rejects any as
Lobby, the
Hobby
or attenuated the
of how direct
that Korte
sessment
court has held
Although the
plaintiff’s religious
imposed on
Indus-
burden
and Grote
Luitjohan Contractors
&
be,
reason
may
ante
practices
it is
rights, what
have free exercise
tries
asking
equivalent
it
ing that
end,
it is the
in the
is that
saying,
practice is
the burdened
mat- whether
the Kortes and Grotes
beliefs of
or whether
faith
effect, embody
plaintiffs
central to the
ter;
corporations,
interpreting his
plaintiff is
ante at
of their beliefs. See
expression
*48
Instead,
at
Autocam,
correctly, ante
682-83.
beliefs
659, 684-85;
730 F.3d at
see also
inqui
pertinent
that the
majority holds
the
plaintiffs characterize
(noting that
noncompli
for-
penalties
the
ry
form
is
“the business
whether
corporation as
their
exert
mandate
government’s
the
their
ance with
[they] endeavor to live
through which
the
world”).
influence on
sufficiently coercive
in the
as Christians
vocation
Hobby Lob
(citing
at 683
Ante
plaintiffs.
have
corporations
the two
Holding
1137).
single-minded
This
is,
by, 723 F.3d at
I said at
interests
religious
their own
of the man
aspect
coercive
focus on the
start,
circumventing
merely a means of
the
getting past
means.of
yet
is
another
of date
it is the beliefs
problem
the
that while
have
of courts
that a number
point
that are at issue
and the Grotes
the Kortes
the man
that because
previously:
made
here,
by
upon
the ACA
imposed
the duties
employ
corporate
imposed on
date is
significantly bur-
do not
corporations
themselves,
than the owners
ers rather
the Kortes
rights of
den the free exercise
the owners
require
it does not
and because
to that
I turn
themselves.
and Grotes
in violation
anything
to do
themselves
point next.
faith,
directly
it does not
juris-
relevance
coercion
free exercise
substantially
prudence,
burden the owners’ reli
and as
result it writes RFRA’s
Grote,
gious
at
practices. See
708 F.3d
provision
“substantial burden”
out of the
(dissent) (coll.cases);
858-59
see also Gi
statute.
lardi,
733 F.3d
2013 WL
analysis
way
The coercion
one
addresses
(Edwards, J.,
at *29-*31
concur
in which government may potentially inter
ring
part
dissenting
part).
&
Per the
plaintiffs
fere with a
free exercise rights.
view,
majority’s
plaintiffs
the individual
Calbone,
Abdulhaseeb v.
only
obligation imposed
need
cite an
on the.
(10th Cir.2010),
upon
cited and relied
corporations that is inconsistent with their
by Hobby Lobby
test,
for the coercion
de
practices;
own
beliefs and
long
so
ways
scribes three
in which a plaintiffs
corporations
as the
into com
coerced
(1)
religious rights may be burdened:
(as
pliance
by
prospect
of substantial
government compels
plaintiff
to do
comply)
fines if
do not
enough
that is
something that is inconsistent with his reli
to establish a substantial burden on their
(2)
beliefs;
gious
government
the'
forbids
rights,
inqui
free exercise
without further
plaintiff
doing something
that his
ry
genuinely
into whether
the mandate
religion
do;
him
motivates
meaningfully
interferes with their reli
government
directly
does
compel
gious practices. Hobby Lobby reasons
plaintiff to
something
by
do
forbidden
his
it
is not the court’s
business
assess
religious beliefs or to
doing
refrain from
obligation
whether
imposed by the
something
beliefs,
commanded
those
government is substantial in the sénse of
but
puts
pressure
instead
substantial
directly
whether it
burdens
plaintiffs’
plaintiff
to do so. See also Sherbert v.
practices
beliefs and
or instead is
Verner,
supra, 374
83 S.Ct. at
attenuated,
government
as the
claims it to
(1793) (describing in different
terms the
equated
be. That assessment
is
with a
multiple ways in
government
which the
inquiry
forbidden
into the theological merit
might
religious rights);
burden
Mack v.
plaintiffs’
claim.
whether the applied sub 36, 139 (1997). L.Ed.2d 5 pressure stantial on the claimant to violate that belief.” Id. categories The third of the Abdulhaseeb Thomas, exemplified coercion-only
This
test
is one of the
petitioner
S.Ct. 1425. The
in Thomas
Tenth Circuit’s invention.
It has the su-
unemployment
was denied
benefits be-
perficial support of language found in mul-
cause he had left
decisions, see,
employment
his
volun-
tiple court
e.g., Hobbie v.
tarily:
quit
he
Fla.,
employer gave
after his
Unemployment Appeals Comm’n of
*49
136, 141,
assignment
him an
(producing military
ar-
107 S.Ct.
maments)
that he
L.Ed.2d 190
believed he could not
(quoting Thomas v.
perform given
religious
Review Bd.
his
In
Employ.
the Indiana
beliefs.
de-
Sec.
Div.,
Thomas,
717-18,
1425; nying
450 U.S.
benefits to
the state unem-
S.Ct.
1431-32,
(1981));
ployment
67 L.Ed.2d
forcing
Vision
board was not
him to
Grove,
act,
Long
Church v. Vill.
or refrain
acting, contrary
468 F.3d
to his
(7th
Cir.2006);
Nonetheless,
Kaemmerling
religious
by
faith.
placing
Lappin,
(D.C.Cir.2008),
553 F.3d
him
place—
between a rock and a hard
misapprehends
but it
stay
job,
both the
and
either
context
on the
and violate his
coverage in their
contraceptive
to include
beliefs,
his
and surrender
quit,
religious
Even absent the
plans.
health
employee
compensation
unemployment
right to
—the
penalties for non-com-
financial
the state
substantial
reasoned
Court
Supreme
presumably
companies
the two
pliance,
him to act con-
coercing
effectively
was
by
govern-
subject to suit
would be
religious principles.
trary
his
to
injunctive
by
employee
an
ment or
receipt of an
the state conditions
Where
if
did
comply
them to
ordering
relief
pro-
conduct
upon
benefit
important
so,
(citing
ante at 660
not otherwise do
see
faith,
it
or where
by a
scribed
1132, 1185d); and,
any
§§
29 U.S.C.
of conduct
a benefit because
denies such
event,
corporations
and
most individuals
belief, thereby
mandated
deliberately ignore
feel free to
an will not
on
pressure
substantial
putting
to do.
plainly requires them
and to what the law
behavior
modify his
adherent to
inquiry into whether
beliefs,
reli-
the entire
upon
a burden
So
his
violate
on the
may
pressure
substantial
compulsion
places
ACA
While
gion exists.
objec-
indirect,
upon free
to take action over their
infringement
plaintiffs
unnecessary
point.
and beside the
nonetheless substantial.
tions is
exercise is
that it does.
dispute
There is no
717-18,
at 1432. See
101 S.Ct.
United
455 U.S.
Air
States
United
527 U.S.
2139, 2150-51,
102
709
and mak
Cemetery
pre-Smith jurisprudence
Indian
Protective Court’s
Lyng v. Nw.
1319,
439, 447,
Ass’n,
108 S.Ct.
ing
485 U.S.
a “substantial burden” on the free
(1988) (“It
1324,
is undis
(noting
purposes
plaintiffs
of
voting rights);
Dep’t
tion of
Mich.
State
Sitz,
claim,
444, 451-52,
RFRA
government conceded law in Police v.
496 U.S.
110
2481,
(1990)
question substantially
2486,
burdened sincere
412
S.Ct.
110 L.Ed.2d
(traffic
E.E.O.C.,
religion).
stops);
free exercise of
These cases are
Univ.
Penn. v.
182,
flatly
198-201,
577,
inconsistent with the notion that we 493 U.S.
110 S.Ct.
586-
(1990)
88,
cannot
or degree
any
assess
nature
107
(compelled
L.Ed.2d 571
dis
imposed
plaintiffs
burden
on
free exer
closure of
university faculty
confidential
reviews);
rights by government
cise
action.7
peer
Safley,
Turner v.
482 U.S.
78, 87-89,
2254, 2261,
107 S.Ct.
96 L.Ed.2d
Evaluating the nature of the
im
burden
(1987) (restrictions
64
prisoner’s
on
First
posed
orthodoxy,
is not a test of the
con
Amendment rights);
v. Bur
Weatherford
sistency,
theological
plaintiffs
merit of a
545, 557-58,
sey,
837,
429 U.S.
97 S.Ct.
religious
stated
beliefs. Provided the
844-45,
(1977) (violations
Exercise simply Clause Court’s cannot under- holding Roy, the D.C. in require stood Circuit Kaem the Government to con- merling Lappin, supra, duct its own ways internal affairs in comport religious sustained dismissal of a par- prisoner’s beliefs of ticular claim citizens. as under RFRA that statutorily Just the Government may appellees not insist that engage in mandated collection and use his DNA any religious observance, set form for purposes of a so national law enforcement appellees may not demand that the database substantially Gov- burdened his free join rights. ernment in their religious alleged chosen Kaemmerling practices by refraining using Christian, Evangelical he viewed compelled law the Amish to of God’s crea- education building block DNA as the work, collec- “perform undeniably he believed that the acts odds with tive tion, use one’s DNA was storage, tenets of their be- fundamental laying foundation for liefs,” tantamount. S.Ct. 1526. rejecting In of an-anti-Christ. contrast, the rise alleges Kaemmerling, claim, court viability Kaemmerling’s requirement that fed- the DNA Act’s not government was emphasized that his eral collect and store modify own forcing him to his behavior: govern- DNA information requires Kaemmerling allege not facts ... does ways that violate ment act his to state burden beliefs, sufficient substantial way suggests but he no exercise because he can on his governmental pres- in which these acts any which is the identify “exercise” modify him his own behavior sure which he subject of the burden to ob any way would violate his beliefs. *55 jects. storage The extraction and Appellant’s (describing Br. at 21 entirely activities DNA information are “knowing as alleged substantial burden FBI, Kaemmerling plays in which had vio- strongly held beliefs been [his] after [Bu no role and which occur unholy oppressive lated act of an a[n] his taken fluid or Prisons] reau regime”). (to he does not sample tissue ob (The at court went on to 553 F.3d 679. extraction, ject). government’s hold,- if alternatively, that the DNA even storage Kaemmerling’s analysis, and a burden impose mandate did substantial call Ka- DNA information does not for Kaemmerling’s rights, free it on exercise modify religious to his behav emmerling step- survive RFRA’s would nonetheless no or any way in involves action ior —it scrutiny analysis. Id. at 680- two strict part, on his nor it oth forbearance does 85.) any religious act erwise interfere supply thus two These lines' cases engages. Although gov which he help criteria that can us determine tis activities with his fluid or ernment’s imposed govern- whether the burden may after takes it sample sue the BOP a free upon plaintiffs action exercise beliefs, ment religious Kaemmerling’s offend First, the rights is substantial. they hamper cannot be said to his reli Braunfeld look line of cases instructs us to at they not gious exercise because' do resulting action burden his modify behavior “pressure [him] way it Thomas, purport- consider the in which and to his beliefs.” violate . interferes with an individual’s exer- 718, 101 edly' at S.Ct. 1425 direct, religion: such burden cise religious Kaemmerling alleges no ob- person from actually prevents it a or impedes, that the DNA Act servance his behaving religion, in accordance with religious violation of his beliefs acts indirect, only it inciden- impose or does pressures it Reli- perform. him to that, example, makes the tal burden- necessarily involves an gious exercise religion costly more but of his Sherbert, observance or where practice, action actually preclude his not does unemployment the denial of benefits n Second, Roy line- of cases exercise? plain- the observance” of the “impede[d] law a what the draws distinction between her work religion by pressuring tiffs do, what a himself to requires plaintiff Saturday in violation of tenets party to do. requires a third permits it religion, her Yoder, although the recognize that compulsory or in These cases where beliefs, plaintiff may a religiously-based have ob- their and because their jection government or to what the another not to companies desire have their facili- something party third does with that the tate the use of contraception necessarily (in provide requires plaintiff law implicates private employees choices of number, Roy, Security Social Raem- they as to how will use the insurance cov- DNA), his merling, the free exercise erage have earned as a benefit of necessarily work, permit clause does him to I any am convinced that bur- impose upon restraint another’s action. den imposed on the free exercise plaintiffs individual is too attenuated to Admittedly, speaks directly neither line qualify as substantial burden. us Supreme the issues before now: the Court has never before considered wheth- er and under what circumstances the stat- A
utorily-mandated provision particular substantial burden is of a one bears direct, to an employee substantially primary, respon benefit will and fundamental employer’s sibility plaintiffs burden the rights. making free exercise (The precedent impracticable. 682-83; that is closest that sce- Ante Lee, Miller, (7th nario United States v. in which Nelson v. Cir.2009); Roger Bryan, Court held that the objecting Amish em- F.3d (7th *56 ployer Cir.2008); obliged pay was to Security Social Civil Liberties for notwithstanding City taxes Urban religious objec- Chicago, his Believers v. su of so, doing pra, Here, tion to 342 F.3d given government’s the at 761. the conten compelling interest in a tion is not that proscribes uniform national the ACA any system of pay.) retirement The belief or any cases I interferes with form of wor just ship activity, have discussed are nonetheless rele- but that the statute none First, vant in requires plaintiffs two senses. the theless like various the to lend ma (the finding circuit cases support activity certain terial to an burdens on use of free rights insubstantial, exercise to contraception) is inconsistent with 709-10, supra they the plaintiffs’ confirm that we can individual Catholic faith. and in fact Specifically, company must examine the plans the nature and health degree of the must resulting gov- provide coverage which, burden insurance by fully underwriting ernment action to it decide whether consti- the cost contra care, tutes a purpose ceptive substantial burden for facilitates what the Kortes Second, RFRA. they and the Grotes demonstrate that in view as a moral wrong (the assessment, making that we use of contraception). must consider precisely objected-to how the action re- reasons, key For two poses the mandate lates to the individual’s exercise his no direct burden on the Kortes’ and religious rights. First, religion. Grotes’ exercise of the my cases,
Taking cue I from these move require mandate does not to them alter on to precisely consider how the practices any ACA’s their own way. As the requirement corporate employer that a court’s articulation of the asserted burden provide clear, health insurance employees they to its objecting makes what to is contraceptive includes coverage does the contraception by parties, use of third or does not burden the free plaintiffs which the do not to facili- wish Second, its owners. Because the does not tate. ACA to the extent the Kortes’ actually require plaintiffs the individual and the Grotes’ concern has to do with themselves to anything contrary do facilitating to what they believe to be immor- (a) and the ception the is indirect: Grotes corpo- it is the by parties, third al conduct they, closely-held who fund the both the owners of Kortes are plans, rate health (b) to may employees required use are now corporations; insurance which which contraception. procure provide the ACA to standardized (c) to coverage employees; health-care obvious, I have first point elect, alia, inter to may employees before, repeated but it cannot be it made contraception. step to obtain Each use ACA re enough. Nothing often separates chain them an additional them quires the Grotes Kortes objected-to practice degree from that violates the anything to selves do contraception. of contra disapproval Catholic Church’s use, or purchase, need not ception. They corporations, It is not the individual contraceptives; they need not dispense are obli- plaintiffs, employers which as contracep use or endorse the promote requisite coverage to gated provide the tives; nor need remain silent as employees of firms. The Kortes them about what their faith teaches incorporated Grotes their businesses immorality use. See Gi contraceptive cor- a reason. Business owners form lardi, 733 F.3d at WL to insulate themselves porations precisely J., (Edwards, concur *29-*31 obligations corporation from the dissenting in ring part part); & Goehr entity separate carry to create a (9th 1294, 1300 ing Brophy, only corporations business. The Cir.1996) (use university fee registration corporations obligation provide bear the plan that to fund student health insurance coverage employees; the insurance coverage not sub included abortion did personal bear no Kortes and Grotes rights of stantially burden free exercise coverage. obligation pay for the Thus objected to on reli who abortion students *57 “material as the money support,” the —the because, gious part, “plaintiffs in grounds & from Korte court describes it—comes in, to required accept, participate are not Luitjohan and Grote Indus- Contractors any the provi or advocate in manner for tries, pockets not from the individu- services”), on sion of abortion overruled plaintiffs.8 al Flores, by City grounds other Boerne of Moreover, companies pro- what the 2157; supra, cf. compensation, viding employee is a form of Stormans, Selecky, Inc. v. F.3d to (9th Cir.2009) wages. Handing paycheck over a like (objection by pharmacy may the employee materially facilitate an contraception); dispensing emergency any (perfectly legál) number of purchase of F.Supp.2d Menges Blagojevich, alcohol, (C.D.Ill.2006) (same). lottery tick- only and goods Their 1000-02 services— ets, eontra- cigarettes, pornography, of adult objected-to connection to the use eontra- Closing Gaps, the sparse us not Women: 8. The record before does reveal (costs pregnancies United degree contraceptive unintended to what the of whether and billion, $5 may in- States in 2002 estimated to mandate increase the cost of health contraception coverage due to esti- employers. con- while costs saved Full of surance billion), (like http:// coverage $19.3 available at traception may mated to be the mandated services) preventive www.nap.edu/catalog.php?record_id=13181. insurers and of other save case, .argument reducing any plaintiffs’ here money long the employers in the In run providing the multiple unplanned turns on additional cost costs with the associated 144-145; coverage facilitating the contraceptive but pregnancies. See Institute infra Medicine, contraceptives by providing cover- that on Preventive Ser- use Committee Women, period. age,- Preventive Services vices for Clinical abortion, books, ception, Harry employer and Potter that plays the some role es- contrary to name a few—that are to an tablishing administering the health course, religious beliefs. care as employer’s plan, opposed supplying Of does not know with employer typically employee employ- how an a voucher that the (Neither employee spend wages. purchase his ee can use to will his own insurance know typically does he what healthcare elsewhere. But the insurance nonethe- is making.) component his is less a employee compensation decisions But that the Suppose employee what if he does know? an em- employee earned—an ac- announces, ployee get cepts “As soon I my salary hourly less or pay ex- paycheck, insurance, I am going change have an abortion.” like health benefits and, cases, suppose Or it is well known at the work- in most contributions have been place a particular employee employee’s drinks paycheck withheld every himself blind at a local tavern Fri- defray further costs that insurance. day gets after night paid. Sepper, Contraception he Can the See Birth Conscience, employer paycheck withhold the Corporate supra, at 22.10 grounds turning it materially employer over will fact in administer- morally assist an act that he finds ing plan fiduciary, intoler- as a treated with explaining why, plain- obligation able? Without a corresponding to act in the employer employee’s tiffs concede that an cannot do interest consistent They insurance, possi- this. do not contend that the provided notion that the while bility, foreknowledge, or even the employer, belongs that an employee. to the employee 1002(21)(A)(I) can will use wages §§ her to See 29 U.S.C. (defining engage activity proscribed in an by the ERISA fiduciaries to include person with plaintiffs’ religious substantially beliefs authority assets); over plan control 1104(a)(1)(A)(ERISA their free rights, burdens notwith- fiduciaries must dis- standing payment wages charge solely to the duties to plan in interests of employees objected-to will facilitate plan participants beneficiaries, for ex- activity.9 provision How is the of health purpose clusive providing benefits thereto).11 insurance different? One difference is Gilardi, Judge put share). 9. As (roughly 28-percent Edwards it in Henry "the J. *58 Foundation, Gilardis are no of an Family more 'essential cause’ Employer of Kaiser 2013 increasing contraception they the use of when Survey, Summary Findings Health of Benefits 20, 2013), Freshway company] pay (Aug. [their authorize http://kff. to & BEx. available at plan employees might for a benefits that use org/report-section/2013-summary-of-findings/ (last get contraception they 2013). to than when authorize visited Nov. wages employee might pur- that an use to contraception chase she would Motorola, not otherwise Inc., generally 11.See Howell be able to 733 F.3d at afford." (7th Cir.2011) (discussing F.3d when (Edwards, J., 2013 WL at *29 con- fiduciaries); employer plan sponsor and act sis (em- part curring dissenting part) in in also, e.g., Emp. see Orth v. Wis. State Union phasis original). in (7th Counsel 546 F.3d Cir. 2008) (employer fiduciary duty breached to
10. The record
by deducting
percent
does
disclose what
the
retiree
cost
of his
plaintiffs' employees contribute toward the
pay
insurance benefits from retirement
rather
their
average
percent
specified
contract);
cost of
health insurance. The
than 10
as
Inc.,
employee
Enters.,
currently
Phelps
$999
contributes
toward
v. C.T.
221
-
$5,884
(4th Cir.2005) (evidence
the
employer-sponsored,
cost of an
employer
that
di
single-coverage plan (roughly
17-percent
employee
verted
contributions to health bene
$4,565
$16,351
share), and
plan
corporate
the
supported
toward
cost of
fits
to other
uses
employer-sponsored,
family-coverage plan
an
fiduciary duty);
claim for breach of
LoPresti
This is. the
in
Zelman v.
objec-
their
sense
which
plaintiffs
the
cast
Although
Simmons-Harris,
639, 652-654,
contracep-
provision
to the
tion
one
2460, 2467-68,
Yes, Zelman and Southworth can be in- it distinguished Finally, considering from this case: Zelman rami- worth claim, deeming may an clause and fications one choice volved establishment of that claim, speech a using Southworth involved free be made an her work- employee this case a free presents place plan whereas exercise healthcare to be burden' on clause But at the bottom all her employer’s rights. free claim. Again, three cases is the claim that forcing compels what the ACA a covered give plaintiff activity employer provide his financial aid to contraceptive not a speech objectionable comprehensive or that he finds can- plan care but health care not be reconciled with First Amend- plan his includes thousands of medical services, rejection ment including contraceptive freedoms. Central to care. It may of this claim Zelman and both possible Southworth seem reasonable agnosticism, permitted coverage was official which out the contraceptives carve (in parties the funds to be used as third from the rest of the insur- ACA-mandated Zelman, Southworth, parents, plan, and in ance the plaintiffs have a council) chose, categorical objection the student no with reason- to the use of contra- (insofar perception ceptives able those pre- choices were as are used to government attributable to either the or contraception) vent contraception objecting plaintiff. The same reason- mandate itself stands out in it re- n why mandatory, ing explains employer- quires coverage contraceptives without (I sponsored coverage insurance in- copayment by employee.12 suspect contraception cludes as a public discourse, covered that as a matter service if not meaningfully treatment, does not plain- judicial burden the contracep- the fact that tiffs’ rights. By including women, free exercise implicates tive care both sex and contraception required coverage, something also has to do reason with the way is in no requiring any why the contraception mandate seems dif- use, endorse, ACA.) company owner to or dis- provisions ferent other pense contraception However, violation of own I pointed his as previously, have out beliefs; given employer the choice whether and might any find number services, under what circumstances to use that cov- those categorically either erage is employee situationally, left the individual inconsistent with his or her physician, private, If, her to be made in today beliefs. as the court participation by employer. holds, no Al- it is a substantial burden though funds company employer’s from the compel health free exercise plan being used to facilitate that him to insure a form of medical care to choice, objective no objects observer would attrib- on religious grounds, which he however, misleading, say, many It is copayment http:// out a under the ACA. See do, reports requires that the mandate the cov- www.healthcare.gov/what-are-my-preventive- erage contraceptives at no cost to the em- (listing categories preven- care-benefits *60 ployee, given employees pay that most some tive copayments care to be covered with no portion workplace of cost of their health insureds, categories for all 22 of such care for Many supra pre- insurance. See n. 10. other women, (last children) categories and 25 for screening ventive and healthcare services are 7, 2013). visited Nov. provided employee be likewise to to the with-
719
legal requirement
granting
ser-
from a
when
of insured medical
then all manner
subject
challenge
rights
to
under
of
exemption
vices are
would burden
1240-41,
733 F.3d at
RFRA. See
Inc. v.
Monthly,
others. See Texas
Bull
Gilardi
5854246,
(Edwards, J., ock,
at *32
1,
8,
890,
2013 WL
n.
18
901
part).
part
dissenting
concurring
8,
(1989)
(not
&
n.
1
(plurality)
103 L.Ed.2d
ing
in free exercise and
significance,
estab
Nor,
objec-
potential
would the
logically,
jurisprudence,
clause
of
lishment
extent
employers
that
could raise be limited
tions
'
exemptions for
proposed
religious
which
grants
Federal
law
to health insurance.
groups
of
rights
would burden
third
rights to
any
employees,
of
number
parties);
Bd.
Virginia
West
State
Educ.
of which
recognition and accommodation
of
Barnette,
630,
624,
63
S.Ct.
be
might find to
inconsistent
employer
(1943)
(noting
coverage
workplace
plaintiffs,
in
health
own religious
based on their
insurance
beliefs,
plans] sacrifices the affected women’s in-
effectively
will have
narrowed the
receiving equitable
in
terest
treatment
scope of healthcare that
is available to
respect
with
health benefits. We are
very
those employees. This is the
scenar-
any decision in which this
unaware of
court
io about
the Supreme
Court has
or
Supreme
the United States
Court has
concern;
signaled
that
given
plain-
and
exempted
objector
a
from the
tiffs’
rights
own free exercise
are at most
neutral,
operation
a
generally applicable
of
modestly
by
contraceptive
burdened
despite
recognition
law
that
the re- mandate,
territory
we tread on dangerous
quested exemption
detrimentally
would
af- by exempting
plaintiffs
from the statu-
fect the
of third
rights
parties.”); Perry
tory mandate.
Dane, Note, Religious Exemptions Under
I
mentioned
the outset
that
A
the Free Exercise Clause:
Model of
court’s decision struck me as reminiscent
Authorities,
Competing
90
L.J.
Yale
era;
explain
the Lochner
let
why
me
I
(1980) (injury
parties may
368
to third
think this
so.
progeny
is
Lochner and its
against
exemption).
counsel
hour,
struck
a
wage,
down
host of
and
might
possible
Whatever work-around
other workplace regulations
theory
on the
right
through
bestow that
alternate'
they
that
impermissibility intruded on the
means,
is no
certainty
gov-
there
contract,
rights of
property, and to engage
or
implement
ernment can will
the work-
lawful,
in a
private
protected
business as
around
it
on any given
or that will do so
by
process
the due
clauses of the Fifth and
timeline,
and
the meantime the corpo-
See, e.g.,
Fourteenth Amendments.
Lo
rate owner has
its
vindicated
asserted
York,
chner
v. New
rights
expense
at the
of others. The stat-
(1905) (state
S.Ct.
When world, they to enter the did not earns the only through business insurance her labor rights, surrender their exercise but typically free but a significant por- contributes reg- did assume responsibility the of her to wages pay tion for it. Her ulatory obligations imposed on all like will guided by, among choices other businesses, statutory obligations including things, religious her own Al- principles. Lee, employees. to U.S. at 455 though employer, in the conveying ben- Gilardi, 1057; 102 S.Ct. at F.3d at earned, she efits has no doubt facilitates (Ed- 1242-43, WL *34 choices, those her freedom to make choices J., wards, in part dissenting & concurring employer’s inconsistent with the Motel, in part); Atlanta Inc. v. Heart cf. imposes nothing own beliefs like States, 241, 259-61, United employer’s a substantial on burden S.Ct. L.Ed.2d practice religion.14 Only by extending (rejecting contention that federal prohibi- scope employer’s of an exercise of tion racial in public discrimination ac- religion beyond belief, far his own worship, commodations motel’s right violated employ- and conduct to the conduct of his operate its choose customers and business ees, we can conceive the insurance bene- wished, given as it powers well established employees provided fits as an undue Congress of both regu- States to burden the free exercise commerce). They late inter- and intra-state is, view, This company my owners. far form corporations legally chose to beyond what Congress had in mind when separated them from the assets and obli- it enacted RFRA. gations of their businesses. See Cedric Ltd., Promotions, supra, Kushner 6. 163, 121 any U.S. at at 2091. Like necessary employer religiously secular If it were pluralistic reach the second nation, the prong inquiry, Kortes and the Grotes must the RFRA I would find companies realize that their indi- employ contraception sup- is mandate who ported by governmental viduals do not share their own reli- a compelling in- beliefs, Judge pointed required As Edwards has but merely out: might action people take enable other No Free Exercise decision issued things plain- do that are at Supreme recognized odds with Court substan- plaintiff’s religious tial burden on a tiff’s beliefs. plaintiff required not F.3d at WL where *29 himself forgo (emphasis original). to take or action that his violates families —those many individuals say, chides court terest. far premiums spent could afford case this who of a more making — time, medical debt- same mind, nature and At the more. But, my respect. underin- uninsured supporting ors—whether the interests weight of larger I much regard, becoming a In this sured —were are obvious. mandate *64 different See materially bankruptcy. no filing those of this case share view al., Himmelstein, found Lee, the court et Medical in which U. David from States, social in a national 2007: interest the United Bankruptcy in government’s sufficiently compelling system Study, 122 Am. J. security a National Results of an Amish em- infringement 8) Uncompen- (Aug.2009). warrant (No. Med. by requiring charity interests ployer’s both (including care hospital sated system. pay into him to hospitals ex- for which services care and it) get not but did compensation pected an obvious has The prior three over had increased tenfold Ameri- broadening in interest compelling 1980, in decades, $39.3 from billion That all $3.9 insurance. to health access cans’ Associ- Hospital in 2010. American in access interest billion have a keen Americans Cost Hospital Care beyond ation, Uncompensated services goods and to medical 2013), at available (January health care of both at 3 As the Fact costs Sheet question. substan- have risen http://www.aha.org/content/13/l-2013- health insurance (last number Nov. and the visited in decades tially recent ncompensated-care-fs.pdf declined, 2013). has plans workplace insurance reform health insurance need for mandate, coupled employer ACA’s year In urgent. become more applicable individual mandate with an enacted, million some 50 was ACA by employer-spon- not covered persons all insurance— health lacked Americans eligi- and otherwise plans health sored non-elderly pop- percent roughly 18 Medicaid, logi- was a or Medicare ble for Human Health & Dep’t of ulation. only, means cal, certainly not although Sec’y for Plan- Servs., Ass’t Office country toward universal moving Brief— Evaluation, ASPE Issue ning & upon the It builds insurance. health the United the Uninsured Overview of of employer-sponsored tradition American Current Summary the 2011 States: A early in the that began health insurance http:// at available Survey, Population Blumenthal, See, century. e.g., David 20th aspe.hhs.gov/health/reports/2011/ Ins. Health Employer-Sponsored (last visited Nov. cpshealthins2011/ib.shtml Implications, 355 New Origins and 2013). in the indi- U.S.— insurance Obtaining 2006). EngláND (July J. Med. No. In av- expensive: was vidual market econ- risk-spreading, advantage of It takes in the premiums monthly erage per-person control, other scale, quality omies insurance for health market' individual insurance. of employer-procured features Alabama a low ranged $136 Dem- of a work And, although was the Massachusetts, nationwide for a $437 it had Congress, President ocratic $2,500 (more per than average of $215 proposed having been first advantage Family Founda- Henry J. Kaiser year). Nixon—nearly 40 a Republican Fads, Monthly Average President — tion, Health State Message from Special ago. See years Individual in the Premiums Per Person Con- to the M. Nixon Richard President
Market, http://http://kff.org/ available Health Comprehensive Proposing gress other/state-indicator/individual-premiums/ 1974), (Feb. 6, available Plan 2013). Insurance (last Needless Nov. .visited http://www.presidency.ucsb.edu/ws/index. the conditions that are statistically (last 2013). Nov. php?pid=4337 visited likely most to result in their death— My intention to validate nor here is neither breast, cervical, colorectal, ovarian and policy the ACA as is not endorse cancer, lung and heart and dis- vascular —that my merely purview recog- within insurance, ease—either because lack —but nize that it embodies rational choices and the services are not covered their insur- leading that the road to those choices has plans, copay- ance large because the long and difficult one. been required by ments their compa- insurance
Compelling government
interests
in nies
screenings
beyond
for these
preventive
gender
both
health care and
financial
childbearing
means. “Women of
support
equality
contracep-
the inclusion
age
percent
incur
pocket
more out of
*65
coverage
tives within the mandated
men,”
health
than
pointed
care costs
she
plans including employer-spon-
insurance
—
“My
guarantees
out.
amendment
access
plans
sored
provide
copay-
without
—must
preventive
to critical
screening
care
and
by
ment
the insured. As the court has
for women to combat their
one
number
noted, included with the
coverage
standard
provides
killers and
it at no cost. This
required
non-grandfathered
of all
health
amendment
a big
eliminates
barrier of
plans
preventive
are a series of
services
high copayments.” Press release: Mikul-
provided
that must be
all
to
adults without
ski Puts Women First
Care
Health
copayment,
including immunizations for
(November 30, 2009),
Debate
available
tetanus,
measles,
meningitis,
influenza,
http://www.mikulski.senate.gov/media/
B,
hepatitis
and other communicable dis-
(last
pressrelease/ll-30-2009-2.cfm
visited
eases; screening
high cholesterol,
dia-
7, 2013);
Nov.
see also Jessica Arons &
betes,
infection, high
HIV
blood pressure,
Rosenthal,
Lindsay
Center for American
cancer,
colorectal
other potentially
and
Progress, Facts About the Health Insur-
conditions;
life-threatening
and both
(June 2012)
Compensation
ance
Gap
screening
counseling
abuse,
and
for alcohol
(“Even
employer-based coverage,
with
use,
obesity.
http://www.
tobacco
and
women
higher out-of-pocket
have
medical
healthcare.gov/what-are-my-preventive-
Overall,
costs than
repro-
men.
women of
(last
2013).
care-benefits
Nov.
visited
age
ductive
spend
percent
more out
requiring
The rationale behind
coverage of
pocket
care,
than men on health
part
copayment
such services without
is obvi-
reproductive
because their
care
health
ous: these are
pre-
services
either
require
needs
frequent
more
health care
altogether
vent illness
or facilitate detec-
always
visits and are not
adequately cov-
at an
tion
earlier
when it
stage
is more
by
ered
their
Among
insurance.
women
treatment,
thereby
amenable to
reducing
by
insured
employer-based plans,
con-
oral
the direct and
costs of
indirect
oth-
illness
traceptives alone account for one-third of
insured,
by
family,
erwise borne
his
his
out-of-pocket
total
health
spend-
care
insurer,
employer, his
medical providers,
ing.”),
http://www.american
available
government.
and the
The Women’s
progress.org/issues/healthcare/news/2012/
ACA,
Health Amendment
spear-
Mikulski,
headed
U.S. Senator Barbara
06/01/11666/facts-about-the-health-
(last
insurance-eompensation-gap/
expanded
requisite
range
preventive
visited
2013).
noted,
Nov.
As the court
separate
preventive
care
include a
set of
has
In
passage
services for
proposing
women.
Women’s Health
amendment,
Amendment,
Senator Mikulski
panel
experts
noted that
convened
many women forego preventive
screenings
the Institute of Medicine determined
(last
wom-
Nov.
2013. A
visited
029.pdf
pre-
what
criteria
on evidence-based
based
when
control whether and
necessary
pro-
ability
an’s
were
services
ventive
highly sig-
pregnant
health and
will become
protect women’s
she
and
mote
ad-
health,
no
included—at
her child’s
ought to be
impacts
nificant
her
therefore
individual—in
to the insured
well-being of her-
health,
ditional cost
economic
and
required of
coverage
health
the standard
pregnan-
family.
and her
Unintended
self
plans.
insurance
non-grandfathered
all
and fetus
to both mother
pose risks
cies
include, in addition
now
services
Covered
woman,
preg-
planning
neither
that a
mammog-
breast cancer
contraception:
is, may both
realizing that she
nant nor
ehemopre-
screening,
genetic
raphy,
practices
care and continue
delay prenatal
variety
for a
screening
counseling;
vention
drinking) that en-
smoking and
(including
including
diseases
sexually-transmitted
fetus.
developing
health of
danger
HIV,
syphilis,
chlamydia, gonorrhea,
contraindicated
Pregnancy is
Id. at 103.
virus;
screenings
papilloma
human
health
with certain
altogether for women
cancer,
di-
B,
gestational
cervical
hepatitis
Intervals be-
at 103-04.
Id.
conditions.
tract in-
urinary
abetes,
osteoporosis,
matter,
preg-
pregnancies also
tween
http://www.healthcare.gov/
fections. See
eighteen
than
commencing
nancies
less
*66
(last
what-are-my-preventive-care-benefits
delivery
higher
prior
pose
months after
2013);
Dep’t
7,
see also U.S.
Nov.
visited
birth
births and low
pre-term
risks of
Servs., Health Re-
Human
Health
of
&
preg-
unintended
weight.
Id. at
An
Admin.,
Pre-
Women’s
& Servs.
sources
strain on
may
put
also
financial
nancy
Guidelines, available at
ventive Services
family, to the extent
her
woman and
http://www.hrsa.gov/womensguidelines/
time off
her to take
require
will
the birth
2013).
7,
(last
Nov.
visited
work,
quit
work
may
her
cause
from
surprise that con-
as no
come
It should
have or cannot
if
altogether
she does
of
in the set
care was included
traceptive
childcare, and
pay
for alternate
afford
the Institute
services that
preventive
substantial,
expenses
unplanned-for
adds
to wom-
panel deemed essential
Medicine
preg-
family budget. Unintended
of Amer-
Ninety-nine percent
en’s health.
impose
also
in birth
resulting
nancies
have en-
who
aged 15
ican women
2008, for
In
public
fisc:
on
large costs
used at least
men have
in sex with
gaged
resulting
births
percent of
example, 65
control.
Institute
birth
one form of
paid
were
pregnancies,
unintended
Preventive
Medicine,
on
Ser-
Committee
(primari-
insurance
by public
programs
for
Women,
Preventive
Clinical
Ser-
vices for
Medicaid)
in total estimat-
and resulted
ly
Gaps, 103
Closing the
vices Women:
for
In-
billion. Guttmacher
of $12.5
costs
ed
(2011),
http://www.nap.edu/
at
available
stitute,
on Unintended
Fact
Facts
Sheet:
Guttmach-
catalog.php?record_id=13181;
(Oct.
States
in the United
Pregnancy
Institute,
Contraceptive
Fact Sheet:
er
2013),
http://www.guttmacher.
at
available
States,
(Aug.2013),
1at
in the United
Use
org/pubs/FB-Unintended-Pregnancy-US.
http://www.guttmacher.org/'
available at
2013). Finally,
(last
7,
Nov.
html
visited
(last
7,
Nov.
visited
pubs/fb_contr_usc.pdf
pregnancies
and unwanted
unintended
Jones,
2013);
& Jo
D. Mosher
William
lion’s share
account
naturally
for
Control, Nat’l. Ctr.
Disease
for
Centers
nearly one-
Currently,
induced abortions.
Statistics,
Contraception
Use
for Health
(49
in the
pregnancies
of all
percent)
half
1928-2008, 5, 15, &
the United States:
in
unintended,
roughly
are
United States
http://
available
(Aug.2010),
Table
(22 per-
pregnancies
of those
percent
www.cdc.gov/nchs/data/series/sr_23/sr23_
pregnancies)
abortion,
cent of all
(2007));
end in
360-365
Jeffrey
al.,
Peipert,
F.
et
resulting
than 1.2
more
million abor Preventing Unintended Pregnancies By
tions annually as of 2008. Guttmacher Providing No-Cost Contraception, 120
Institute,
In
Facts on Induced Obstetrics & Gynecology
(Oct.2012);
Brief:
(Oet.2013),
Abortion in the United States
Amy
Cohen,
Deschner & Susan A.
Contra-
,at
available
http://www.guttmacher.org/
ceptive
Key
Use Is
Reducing
Abortion
(last
pubs/fb_induced_abortion.html
visited Worldwide, 6 GuttmacheR
Report
on Pub-
2013).
Nov.
Abortions themselves have
(Oct.2003),
liC PoliCY No. 4
available at
(roughly
economic costs
percent
http://www.guttmacher.Org/pubs/tgr/06/4/
Medicaid,
paid
id.),
example,
see
(last
gr060407.html
7, 2013));
visited Nov.
and, as important,
many
because
Ameri
John Bongaarts
Westoff,
& Charles F.
oppose
cans
abortions on moral grounds, The Potential Role
Contraception legitimate
interest
Abortion,
Family
Reducing
31 Studies
in reducing the
abortion rate.
See
Planning
(Sept.2000).
Planned Parenthood
Se. Penn. v. Ca
right
contraception is,
use
sey,
supra, 505
112 S.Ct. at
course, constitutionally protected.
(state may
express preference for
Connecticut,
Griswold v.
381 U.S.
abortion);
childbirth over
Michael M. v.
485-86,
1678, 1682, 14
85 S.Ct.
L.Ed.2d 510
Superior Ct.
Cnty.,
Sonoma
(1965) (state statute forbidding use of con
470-71 &
n.
1205 &
traceptives
impermissibly intrudes
n.
thered say the limited had this to about O’Connor of degree. See Institute care to some clause: reach of the free exercise Medicine, Services Clinical Preventive for it might 'much we wish However (as Women, 85% 108-09 otherwise, simply were plans health cov- and 62% of small large required if it were operate could not Claxton, (citing Gary contraception) ered every religious citizen’s needs satisfy Found., al., Family Kaiser et ANnual Sur- govern- A range and desires. broad Employer vey Benefits, Health pro- welfare ment activities—from social (2010), http://kaiserfamily available foreign aid to conservation grams foundation.files.wordpress.com/2013/04/ considered es- projects always be 2013)); (last see visited Nov. 8085.pdf —will spiritual well-being sential Institute, Guttmacher also Polioies State citizens, of sin- often on the basis some Coverage Brief, Contra- Insurance Others will cerely held beliefs. which re- (surveying state laws ceptives offensive, deeply find the same activities contraceptives), to cover quire insurers with their own perhaps incompatible http://www.guttmacher.org/ available at spiritual fulfillment and with search for (last visited statecenter/spibs/spib_ICC.pdf religion. The First the tenets of their 2013). Finally, the fact that Nov. all citizens apply to Amendment must exemption ACA contains an alike, to none of them a give and it can permanent the sole employers —which programs that do public veto over man- contraception exemption from the religion. prohibit the free exercise Gilardi, date, F.3d at see not, and courts does The Constitution (Edwards, J., 5854246, at *33 2013 WL cannot, reconcile the various offer to part dissenting part)— & concurring government, competing demands exemp- that an by no means demonstrates them rooted sincere many of any employer with required tion is belief, inevitably arise in so diverse objection contracep- potential religious task, to the society ours. That That of healthcare. any type tion or other feasible, legisla- is for the extent it is common to exemption is a feature type of tures and other institutions. statutes, including any number of federal (citation at 1327 Rights Act Title VII of Civil omitted). 2000e-l(a), § and the Americans 42 U.S.C. seek accommodation plaintiffs Act of U.S.C. What with Disabilities *70 conduct, Gilardi, on their 12187; here is a demand 12113(d), §§ see beliefs; and the 5854246, religious than their 1241-43, at *33-*34 rather at 2013 WL “the recognized that always (Edwards, J., part in & dissent- Court concurring 34,552 (June Act, 34,538, Fed.Reg. at Care 75 ing Health Plan to Status as a Grandfathered 17, 2010). and Affordable the Patient Protection Under 730 act, exemption
freedom to
even where the action is in
from the mandate burdens the
convictions,
accord with one’s
is
rights of the plaintiffs’ employees. Final-
totally
legislative
free from
restric
ly, it
precedent
establishes a
which invites
603,
Braunfeld,
tions.”
366
at
U.S.
81 free-exercise challenges to a host of feder-
at
(citing
S.Ct.
1146
Cantwell v. Connecti
which,
al
corporations
laws
secular
cut,
296,
306,
303-04,
310 U.S.
reality,
have no
beliefs of their
903-04,
(1940));
also,
over, it is implicates also conduct that
rights parties of third employees. —their
The reach of the free exercise clause limited, setting quite whereas the
government’s interests in pursuing the uni application
form religiously-neutral of a COUNTY, ILLINOIS, UNION promoting statute et employees al., Plaintiffs-Appellants, quite strong. holding The court’s granting the Kortes Grotes, along and the with their two secu- MERSCORP, INC., al., et Defendants- corporations, lar a religiously-based ex- Appellees. emption from an rep- insurance mandate resents a dramatic turn in free exercise Nos. 13-1794. jurisprudence for all of the I reasons have United States Court of Appeals, discussed. It a highly personal bestows Seventh Circuit. right secular, exercise on two for-profit corporations that have no facility Argued Sept. 2013. conscience, thought, or belief. It deems Decided Nov. religious rights plaintiffs bur- dened contraceptive mandate with-
out consideration of the indirect and mini-
mal intrusion on their religion. exercise of
And it disregards the extent to which the Notes organization is an that meets employers mandate] applies mandate traception following criteria: employees. full-time See all 50 or more with employers— § 4980H. Smaller 26 U.S.C. (1) religious The inculcation of values employ- than 50 full-time fewer those with purpose organization. of the is a health required provide not ees—are (2) organization primarily The em- apparently employees their plan for persons religious who ploys share mínimums, coverage subject to the are organization. tenets of the contraception mandate. See including the (3) primarily organization The serves it’s not say “apparently” because id. We religious share the tenets persons who categori- mandate entirely clear that the organization. of the employers; to small cally inapplicable nonprofit or- organization The if a position takes the government in section ganization as described required to employer not otherwise small 6033(a)(1) 6033(a)(3)(A)(i) and section plan employee health-care provide an (iii) of the Internal Revenue Code so, regulato- chooses to do nonetheless [covering as amended the tax of the man- ry requires scheme inclusion integrat- status of churches and their coverage. contraception dated auxiliaries, conventions or associa- ed when the Act plans Health existence churches, exclusively tions of and the and do adopted “grandfathered” are was religious orders]. activities of mini- coverage comply not need to 147.130(a)(1)(iv)(B). man- including contraception § Id. mums— sponsor makes cer- plan date —unless the Religious-Employer The Controver- B. plan. changes tain to the terms sy Grandfathering § is a U.S.C. was contraception The mandate instant- measure; category will transitional religious-employer ly The controversial.4 existing employer-based plans as shrink for conscien- exemption did not leave room changes. undergo to March prior religious objectors other houses tious than that the num- estimates integrated organ- affiliate worship, status will plans grandfathered ber izations, acting orders fairly rapidly as older health-care dwindle words, the definition of such. In other In- plans updated and renewed. See employer” was so circumscribed “religious Group Final Rules for Health Plans terim colleges and uni- it left out Coverage Relating Insurance and Health clinics; versities; religious hospitals Plan, as a Grandfathered Health to Status