Lead Opinion
These consolidated appeals challenge the federal government’s “contraception
The plaintiffs are two Catholic families and their closely held corporations — one a construction company in Illinois and the other a manufacturing firm in Indiana.' The businesses are secular and for profit, but they operate in conformity with the faith commitments of the families that own and manage them. The plaintiffs object for religious reasons to providing the mandated coverage. They sued for an exemption on constitutional and statutory grounds.
Center stage at this juncture is the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq., which prohibits the federal government from placing substantial burdens on “a person’s exercise of religion,” id. § 2000bb-1(a), unless it can demonstrate that applying the burden is the “least restrictive means of furthering ... [a] compelling governmental interest,” id. § 2000bb-l(b). Focusing primarily oh their RFRA claims, the plaintiffs in each case moved for a preliminary injunction. The district judges denied relief, holding that the claims were not likely to succeed. We provisionally disagreed and enjoined enforcement of the mandate pending appeal.
The appeals have now been briefed and argued and are ready for decision. Plenary review has confirmed our earlier judgment. These cases — two among many currently pending in courts around the country — raise important questions about whether business owners and their closely held corporations may assert a religious objection to the contraception mandate and whether forcing them to provide this coverage substantially burdens their religious-exercise rights. We hold that the plaintiffs — the business owners and their companies — may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religious-exercise rights. Under RFRA the government must justify the burden under the standard of strict scrutiny. So far it has not done so, and we doubt that it can. Because the RFRA claims are very likely to succeed and the balance of harms favors protecting the religious-liberty rights of the plaintiffs, we reverse and remand with instructions to enter preliminary injunctions barring enforcement of the mandate against them.
I. Background
A. The Contraception Mandate
On March 23, 2010, Congress adopted the Affordable Cafe Act, a sweeping legislative and regulatory overhaul of the nation’s health-care system. The Act “aims to increase the number of Americans covered by health insurance and decrease the cost of health care.” Nat’l Fed’n of Indep. Bus. v. Sebelius (“NFIB”), - U.S.-,
A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for—
(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [“HRSA,” an agency within HHS] for purposes of this paragraph.
42 U.S.C. § 300gg-13(a); see also 29 U.S.C. § 1185d.
Before promulgating regulations pursuant to this statutory directive, the HRSA sought advice from the Institute of Medicine at the National Academy of Science about what services to include in the preventive-care mandate. Based on the Institute’s recommendations, the HRSA issued comprehensive guidelines requiring coverage of (among other things) “[a]ll Food and Drug Administration [“FDA”] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Health Res. & Servs. Admin., Women’s Preventive Services Guidelines: Affordable Care Act Expands Prevention Coverage for Women’s Health and Well-Being, http://www.hrsa.gov/womens guidelines/ (last visited Nov. 7, 2013). These include oral contraceptives (“the pill”), barrier methods, implants and injections, emergency oral contraceptives (“Plan B” and “Ella”), and intrauterine devices.
Noncompliance with the contraception mandate is punished by steep financial penalties and other civil remedies. For example, failure to provide the mandated coverage brings a tax penalty of $100 per day per employee — $36,500 per year per employee. See 26 U.S.C. § 4980D(a), (b)(1). If an employer discontinues offering a health plan altogether, the penalty is $2,000 per year per employee. See id. § 4980H(a), (c). In addition, noncomplying employers face potential enforcement actions by the Secretary of Labor and plan participants and beneficiaries under ERISA. See 29 U.S.C. §§ 1132, 1185d.
Like many of the other employer mandates in the Affordable Care Act, the con
Health plans in existence when the Act was adopted are “grandfathered” and do not need to comply with the coverage minimums — including the contraception mandate — unless the plan sponsor makes certain changes to the terms of the plan. See 42 U.S.C. § 18011. Grandfathering is a transitional measure; this category will shrink as employer-based plans existing prior to March 23, 2010, undergo changes. The government estimates that the number of plans in grandfathered status will dwindle fairly rapidly as older health-care plans are updated and renewed. See Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan, 75 Fed.Reg. 34,538, 34,552 (June 17, 2010).
Finally, some religious employers are exempt from the contraception mandate, see 45 C.F.R. § 147.130(a)(1)(iv)(A), but “religious employer” was initially defined quite narrowly:
[A] “religious employer” [for purposes of an exemption from the contraception mandate] is an organization that meets all of the following criteria:
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tenets of the organization.
(3) The organization serves primarily persons who share the religious tenets of the organization.
(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended [covering the tax status of churches and their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of religious orders].
Id. § 147.130(a)(1)(iv)(B).
B. The Religious-Employer Controversy
The contraception mandate was instantly controversial.
HHS responded to the outcry from these left-out employers by establishing a temporary “safe harbor” for certain non
As revised, the exemption drops the first three requirements of the earlier definition of “religious employer,” but the change is not intended to alter the exemption’s scope. “Religious employer” is now defined as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a). The cross-reference is the tax exemption for churches and their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of religious orders. See 26 U.S.C. § 6033(a)(3)(A)(i), (iii). HHS has explained that “the simplified and clarified definition of religious employer does not expand the universe of religious employers that qualify for the exemption beyond that which was intended in the 2012 final regulations.” Coverage of Certain Preventive Services, 78 Fed.Reg. at 39,874. In other words, the exemption remains limited to “[hjouses of worship and their integrated auxiliaries.” Id.
Under the revised rule, certain nonprofit religiously affiliated employers may receive an “accommodation” — essentially, an attempted workaround whereby the objecting employer gives notice to its insurance carrier and the insurer issues a separate policy with the mandated coverage. The accommodation is limited to organizations that meet the following requirements:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section ....
45 C.F.R. § 147.131(b). Notably for our purposes, neither the final religious-employer exemption nor the accommodation applies to for-profit employers with conscientious religious objections to providing the mandated coverage.
C. The Plaintiffs
1. The Kortes and K & L Contractors
Cyril and Jane Korte own and operate Korte & Luitjohan Contractors, Inc. (“K & L Contractors”), a construction company located in Highland, Illinois. K & L Contractors has approximately 90 full-time employees, 70 of whom belong to a union that sponsors their health-insurance plan. The company provides a health-care plan for the remaining 20 or so nonunion employees. Together, Cyril and Jane own about 87% of the stock of the corporation and are its only directors. Cyril is the president and Jane is the secretary of the company. As officers and directors, they set all company policy.
The Kortes are Catholic and follow the teachings of the Catholic Church regard
The contraception mandate stood in their way. The company’s existing healthcare plan was set to renew on January 1, 2013, triggering the, requirements of the mandate and the large financial penalties and possible enforcement actions if they did not comply. As the Kortes understand their religious obligations, providing the mandated coverage would facilitate a grave moral wrong. On the other hand, following the teachings of their faith and refusing to comply would financially devastate K & L Contractors and the Kortes as its owners; at $100 per day per employee, the monetary penalties would total $730,000 per year.
The Kortes responded to the conflict between their legal and religious duties in two ways. First, they promulgated ethical guidelines for K & L Contractors memorializing the faith-informed moral limitations on the company’s provision of health-care benefits, including its inability to provide insurance coverage for -abortion, abortifa-cient drugs, artificial contraception, and sterilization.
2. The Grotes and Grote Industries
The Grote Family owns and manages Grote Industries, Inc., a manufacturer of vehicle safety systems headquartered in Madison, Indiana.
Grote Industries has 1,148 full-time employees at various locations, including 464 in the United States. The company provides a health-care plan that is self-insured and renews annually on the first of every year. Consistent with the Grote Family’s Catholic faith, prior to January 1, 2013, the employee health-care plan did not cover contraception and sterilization procedures. Starting on that date, however, the requirements of the contraception mandate kicked in.
Like the Kortes and K & L Contractors, the Grote Family and Grote Industries object on religious grounds to providing coverage for contraception, abortion-inducing drugs, and sterilization procedures. But with its large full-time workforce, the company faced an annual penalty of almost $17 million if it did not comply with the mandate. The Grotes and Grote Industries filed suit in the Southern District of Indiana for a religious exemption from the mandate.
D. The Litigation
Both complaints name the Secretaries of HHS, Labor, and the Treasury as defendants and seek declaratory and injunctive relief against the contraception mandate. Both sets of plaintiffs allege that the mandate violates their rights under RFRA; the Free Exercise Clause, the Establishment Clause, and the Free Speech Clause of the First Amendment; and the Administrative Procedure Act. The Grote complaint adds a due-process claim. In both cases the plaintiffs moved for a preliminary injunction the day after filing suit, focusing primarily though not exclusively on their RFRA claims.
In Korte the district court in Southern Illinois denied the motion, concluding that the Kortes and K & L Contractors had not demonstrated a likelihood of success on the merits. Regarding the RFRA claim in particular, the judge held that although the Kortes and K & L Contractors are “persons” within the meaning of RFRA and may invoke the statute’s protection, the contraception mandate does not substantially burden their religious-exercise rights. This is so, the judge held, because the link between the mandated coverage and the acts condemned by the Kortes’ religion is too attenuated. In other words, the burden on religious exercise is insubstantial because the compelled provision of contraception coverage is too far removed from the independent decisions by plan participants and beneficiaries to use contraception. The court also found the free-exercise claim unlikely to succeed.
In Grote the district court in Southern Indiana likewise denied the motion, also concluding that the plaintiffs were not likely to succeed on their RFRA claim. Unlike her colleague in Southern Illinois, however, the Indiana judge doubted that a secular, for-profit corporation like Grote Industries has religious-exercise rights under RFRA. The judge did not decide the question, however, concluding instead that any burden on the Grotes or Grote Industries is insignificant because too many independent decisions separate the provision of the mandated coverage and the practices deemed immoral by the Catholic Church. The court also found the constitutional and Administrative Procedure Act claims unlikely to succeed.
On the strength of our provisional decision in Korte, the Grotes and Grote Industries returned to the district court in Southern Indiana and asked for reconsideration. The judge acknowledged the similarity between the two cases but declined to reconsider because our order in Korte had no precedential effect. The plaintiffs appealed and asked for an injunction pending appeal. Tracing our analysis in Korte, we granted the request and enjoined enforcement of the mandate pending appeal. Grote v. Sebelius,
The appeals proceeded to full briefing, and we heard argument at the end of May. Since then, four circuits have reached decision in similar cases. The Tenth Circuit held that two closely held, for-profit businesses and their owners are likely to succeed on a claim for an exemption from the mandate under RFRA. Hobby Lobby Stores, Inc. v. Sebelius,
II. Analysis
These cases come to us on appeals from orders denying preliminary injunctive relief. See 28 U.S.C. § 1291. To win a preliminary injunction, the moving party must demonstrate that (1) it has no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied; and (2) there is some likelihood of success on the merits of the claim. See Ezell v. City of Chicago,
Two legal questions are contested: (1) is a secular, for-profit corporation a “person” under RFRA; and (2) does the'contraception mandate substantially burden the religious-exercise rights of any of the plaintiffs, individual or corporate? If the answer to these questions is “yes,” the government must discharge its burden of justifying the mandate under strict scrutiny. We conclude as follows: The corporate plaintiffs are “persons” under RFRA and may invoke the statute’s protection; the contraception mandate substantially burdens the religious-exercise rights of all of the plaintiffs; and the government has not carried its burden under strict scrutiny-
First, however, we clear away some possible jurisdictional objections.
A. Jurisdiction
Although the government never challenged jurisdiction, either in the district court or here, we have an independent obligation to satisfy ourselves that jurisdiction is secure before proceeding to the merits. See Minn-Chem, Inc. v. Agrium Inc.,
Article III of the Constitution limits the judicial power to “Cases” and “Controversies,” U.S. Const. art. III, § 2, cl. 1; Clapper v. Amnesty Int’l USA, —— U.S. -,
The contraception mandate inflicts a concrete and particularized injury on all of the plaintiffs.
The Kortes and Grotes also have Article III. standing, although this conclusion requires a bit more elaboration. The contraception mandate injures the individual plaintiffs in two concrete ways. First, because- corporate ownership is closely held, the mandate’s indirect effect on the financial interests of the Kortes and Grotes as controlling shareholders is a concrete injury sufficient to support Article III standing under Supreme Court and circuit precedent. See Franchise Tax Bd. of Calif. v. Alcan Aluminium Ltd.,
Second, the Kortes and the Grotes face an intangible but no less concrete injury to their religious-exercise rights. It is axiomatic that organizational associations, including corporations, act only through human agency. See Reich v. Sea Sprite Boat Co.,
Compelling a person to do an act his religion forbids, or punishing him for an act his religion requires, are paradigmatic religious-liberty injuries sufficient to invoke the jurisdiction of the federal courts. See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal,
Finally, we note that the shareholder-standing rule does not block the Kortes and Grotes from challenging the mandate. The rule is an aspect of third-party standing doctrine, which implements the general principle that litigants may not sue in federal court to enforce the rights of others. See Franchise Tax Bd.,
Like other rules of third-party standing, however, the shareholder-standing rule is a prudential limitation and does not affect the court’s authority to hear the case. “Prudential-standing doctrine ‘is not jurisdictional in the sense that Article III standing is.’ ” Id. at 756 (quoting Main-Street Realtors,
2. The Anti-Injunction Act
The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” 26 U.S.C. § 7421(a). The Act “protects the Government’s ability to collect a consistent stream of revenue! ] by barring litigation to enjoin or otherwise obstruct the collection of taxes.” NFIB,
The Anti-Injunction Act does not apply here.
The mandate was promulgated by HHS pursuant to authority delegated to it by a section of the Affordable Care Act that amends the Public Health Services Act. See 42 U.S.C. § 300gg-13(a)(4). The statutory component of the mandate imposes a general preventive-care requirement on all group health-care plans (including employer-sponsored plans) and issuers of individual and group health-insurance policies. See id.' The mandate is situated in the public-welfare title of the Code of Federal Regulations — more specifically, in the part containing regulations governing the group and individual health-insurance markets. See 45 C.F.R. § 147.130. The mandate is backed by stiff tax penalties against employers that fail to comply, see 26 U.S.C. §§ 4980D, 4980H, but there are additional consequences for noncompliance, including ERISA enforcement actions by the Secretary of Labor and plan participants and beneficiaries, see 29 U.S.C. §§ 1132, 1185d. Noncompliant health insurers are subject to the enforcement authority of the Secretary of HHS as well as the states in which they operate. See 42 U.S.C. § 300gg-22.
It should be clear from this description that the contraception mandate is not structured as a predicate to the imposition of a tax but is. instead an independent regulatory mandate. These lawsuits target the mandate itself.
It is true that the complaints name the Treasury Secretary as a defendant in addition to the Secretaries of HHS and Labor, and the plaintiffs have asked the court to enjoin the enforcement of the mandate by any of them. If the plaintiffs win an exemption from the mandate, they will not be liable for the tax penalty under
Still, there is no doubt that § 4980D, a provision in the Internal Revenue Code, is implicated in the remedial sweep of these cases, so we think it best to address whether it is properly classified as a “tax” within the meaning of the Anti-Injunction Act. It is not.
We acknowledge that Congress used the term “tax” in the text of § 4980D (and also in § 4980H, the alternative “shared responsibility payment” for employers that drop or otherwise go without an employee health-care plan). The language Congress uses to describe an exaction is ordinarily the best evidence of whether it meant the Anti-Injunction Act to apply. See NFIB,
Other features of § 4980D confirm that the provision is meant to penalize employers for noncompliance with the various mandates in the Affordable Care Act and its implementing regulations. The sheer size of the required payment fairly screams “penalty.” Any failure to provide the mandated minimum coverage — no matter how significant the deviation — costs the employer a whopping $100 per day per employee. See 26 U.S.C. § 4980D(b). Exacting such a high price for noncompliance suggests that the congressional objective is punitive. See Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc.,
When Congress regulates private conduct and makes noncompliance painful by exacting severe and disproportionate monetary consequences, the primary purpose of the scheme must be understood as regulatory and punitive rather than revenue raising. See Robertson v. United States,
The statute also contains several exceptions based on the employer’s scienter, see 26 U.S.C. § 4980D(c), a key indication that the payment is a penalty, not a tax. See
Together, these aspects of the regulatory scheme all point in the same direction: Section 4980D is a penalty for noncompliance with the regulatory mandates on employer-based health-care plans. It is not a tax for purposes of the Anti-Injunction Act. By parallel reasoning the same is true of the alternative payment in § 4980H. This conclusion comports with the Supreme Court’s decision in NFIB, which held that the Affordable Care Act’s “shared responsibility payment” for noncompliance with the individual insurance mandate is not a tax for purposes of the Anti-Injunction Act.
B. The RFRA Claim
In Employment Division, Department of Human Resources of Oregon v. Smith,
Congress responded to this shift in free-exercise doctrine by enacting RFRA, “a statutory rule comparable to the constitutional rule rejected in Smith.” O Centro Espirita,
RFRA’s general rule is as follows:
Free exercise of religion protected
(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
42 U.S.C. § 2000bb-1. The exception is as follows:
(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that duplication of the burden to the person—
(1) is in furtherance of a compelling governmental’interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
Id.
RFRA applies retrospectively and prospectively to “all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after” its effective date. 42 U.S.C. § 2000bb-3(a). Prospective application is qualified by the rule that “statutes enacted by one Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute as modified.” Dorsey v. United States, — U.S. -,
Congress’s protective stan'ce in favor of religious accommodation ' could not be clearer. RFRA’s statement of purpose explicitly reaffirms our national commitment to the “free exercise of religion as an unalienable right,” id. § 2000bb(a)(l), existing prior to and above ordinary law. RFRA is structured as a “sweeping ‘super-statute,’ cutting across all other federal statutes (now and future, unless specifically exempted) and modifying their reach.” Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S.Code, 56 Mont. L.Rev. 249, 253 (1995). It is “both a rule of interpretation” and “an exercise of general legislative supervision over federal agencies, enacted pursuant to each of the federal powers that gives rise to legislation or agencies in the first place.” Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L.Rev. 209, 211 (1994); see also Nicholas Quinn Rosen-kranz, Federal Rules of Statutory Interpretation, 115 . Haev. L.Rev. 2085, 2110 (2002) (explaining the function of generally applicable statutory rules of interpretation).
In short, RFRA operates as a kind of utility remedy for the inevitable clashes between religious freedom and the realities of the modern welfare state, which regulates pervasively and touches nearly every aspect of social and economic life. See Thomas C. Berg, What Hath Congress Wrought? An Interpretative Guide to the Religious Freedom Restoration Act, 39 Vill. L.Rev. 1, 25-26 (1994). Judges are assigned the task of mediating these conflicts. RFRA makes that role clear, “mandating consideration, under the compelling interest test, of exceptions to rules of general applicability.” O Centro Espirita,
Once a RFRA claimant makes a prima facie case that the application of a law or regulation substantially burdens his religious practice, the burden shifts to the government to justify the burden under strict scrutiny. O Centro Espirita,
1. For-Profit Corporations as RFRA “Persons ”
RFRA’s general rule prohibits the federal government from placing substantial burdens on “a person’s exercise of religion” absent compelling justification, and only then if the burden is the least restrictive means of furthering the compelling governmental objective. As originally enacted, RFRA defined “exercise of religion” as “the exercise of religion under the First Amendment to the Constitution.” Pub.L. No. 103-141, § 5, 107 Stat. 1488, 1489 (1993).. Congress amended the definition in 2000 with the enactment of the Religious Land Use and Institutionalized
RFRA does not define “person.” This brings the Dictionary Act into play.
To determine whether the context “indicates otherwise,” the Supreme Court has instructed us not to stray too far from the statutory text. See Rowland v. Calif. Men’s Colony, Unit II Men’s Advisory Council,
Where a court needs help is in the awkward case where Congress provides no particular definition, but the definition in 1 U.S.C. § 1 seems not to fit. There it is that the qualification “unless the context indicates otherwise” has a real job to do, in excusing the court from forcing a square peg into a round hole.
The point at which the indication of particular meaning becomes insistent enough to excuse the poor fit is of course a matter of judgment....
Id. at 200,
Nothing in RFRA suggests that the Dictionary Act’s definition of “person” is a “poor fit” with the statutory scheme. To use the Supreme Court’s colloquialism, including corporations in the universe of “persons” with rights under RFRA is not like “forcing a square peg into a round hole.” Id. A corporation is just a special form of organizational association. No one doubts that organizational associations can engage in religious practice. The government accepts that some corporations — religious nonprofits — have religious-exercise rights under both RFRA and the Free-Exercise Clause. As evidence of this, the contraception mandate exempts a class of religious organizations — i.e., churches and their integrated auxiliaries, see 45 C.F.R. § 147.131(a) — whether or not they conduct their activities in the corporate form (as many of them do). HHS also extends its “accommodation” to a broader set of religiously affiliated nonprofit corporations. See id. § 147.131(b).
Indeed, the Supreme Court has enforced the RFRA rights of an incorporated religious sect, see O Centro Espirita,
The government draws the line at religiously affiliated nonprofit corporations. That line is nowhere to be found in the text of RFRA or any related act of Congress. Nor can it be found in the statute’s broader contextual purpose, assuming we were to venture beyond the textual inquiry envisioned by the Supreme Court for resolving Dictionary Act questions. The government argues that a religious/nonprofit limitation can be found by implication from judicial interpretations of two unrelated employment-discrimination statutes — namely, Title VII and the Americans with Disabilities Act (“ADA”) — both of which contain targeted exemptions for religious employers. We are not convinced.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of religion. See 42 U.S.C. § 2000e-2. Certain religious employers are exempt from this part of Title VII and may take religion into account in making employment decisions: “This subchapter shall not apply ... to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion....” Id. § 2000e-1(a). The ADA, which prohibits employment discrimination on the basis of disability, contains a similar exemption for religious employers. See id. § 12113(d)(1)-(2). Some lower courts have developed multifactor tests to determine when Title VIPs religious-employer exemption applies; the nonprofit status of the employer, is considered a relevant factor. See, e.g., Spencer v. World Vision, Inc.,
Never mind that much of this caselaw postdates the enactment of RFRA. The more important point is'that a handful of lower-court decisions applying an interpretive gloss to Title VIPs religious-employer exemption hardly implies that Congress meant to limit RFRA in the same way. As the. Tenth Circuit noted in Hobby Lobby, the government asks us to infer from con
The government also relies on the Supreme Court’s decision in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos,
To the contrary, the church labor-relations cases illuminate a fundamental flaw in the government’s argument — its failure to recognize that RFRA protects religious liberty more broadly than the religious-employer exemptions in Title VII and the ADA. To see how, it’s helpful to return to some first principles of free-exercise doctrine.
It’s well understood that the Free Exercise Clause protects “first and foremost, the right to believe and profess,” but also the right to engage in religiously motivated conduct. Smith,
The right to believe and profess is absolute. See Bob Jones Univ. v. United States,
Free-exercise problems usually arise when a law, regulation, or some action of a public official interferes with a religiously motivated practice, forbearance, or other conduct. These claims present in distinct ways, reflecting different dimensions of the right. See generally Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L.Rev. 1373, 1388-89 (1981); Eugene Volokh, A Common-Law Model
One obvious and intuitive aspect of religious liberty is the right of conscientious objection to laws and regulations that conflict with conduct prescribed or proscribed by an adherent’s faith. Sherbert, Yoder, and Thomas are the paradigm cases in this category. In Sherbert a Seventh-day Adventist was denied unemployment compensation benefits after she lost her job for refusing to work on her Sabbath day.
A different aspect of religious liberty protects, broadly speaking, the autonomy of the church. As the Supreme Court explained in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, — U.S.-,
The church-autonomy doctrine respects the authority of churches to “select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions” free from governmental interference. Laycock, Towards a General Theory of the Religion Clauses, supra, at 1389. This dimension of religious liberty has a foothold in both Religion Clauses, see Hosanna-Tabor,
Two related principles are at work in these cases. First, civil authorities have no say over matters of religious governance; and second, secular judges must defer to ecclesiastical authorities on questions properly within their domain. These limitations arise from the justification for the different aspects of religious liberty secured by the Religion Clauses. See Douglas Laycock, Church Autonomy Revisited, 7 Geo. J.L. & Pub. Pol’y 253, 260-65 (2009). As the Supreme Court explained in Hosannctr-Tabor:
Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits governmental involvement in such ecclesiastical decisions.
In this way the Religion Clauses work together to protect the institutional freedom of the church “for itself, and not simply as a proxy for the religious-liberty rights of individuals,” in light of the Constitution’s ordering of the relationship between religion and government. Richard W. Garnett, Standing, Spending, and Separation: How the No-Establishment Rule Does (and Does Not) Protect Conscience, 54 Vill. L.Rev. 655, 674 (2009); see also Paul Horwitz, Churches as First Amendment Institutions: Of Sovereignty and Spheres, 44 HaRV. C.R.-C.L. L.Rev. 79, 116-22 (2009).
The religious-employer exemptions in Title VII and the ADA are legislative applications of the church-autonomy doctrine. By their terms the exemptions are limited to religiously affiliated employers, a limitation that makes sense in light of the rationale for the rule. The exemption is categorical, not contingent; there is no balancing of competing interests, public or private. In other words, where it applies, the church-autonomy principle operates as a complete immunity, or very nearly so. Such a strong hands-off principle isn’t justified for organizational associations that are not religiously affiliated.
In contrast, the judicial remedy in RFRA is both broader and more flexible. It covers religious organizations as such, but it does not stop there. The remedy is available to any sincere religious objec
For these reasons, the cases interpreting the Title VII and ADA exemptions do not shed light on the scope of the RFRA exemption. The government’s proposed exclusion of secular, for-profit corporations finds no support in the text or relevant context of RFRA or any related statute.
That’s enough to resolve the matter, but it’s worth briefly exploring whether RFRA’s animating purpose provides a clue that it is not meant to apply to secular, for-profit corporations. Congress was clear that RFRA codifies pre-Smith free-exercise jurisprudence — in particular, the rule of Sherbert and Yoder — so if the Supreme Court’s pre-Smith free-exercise cases categorically excluded secular, for-profit corporations, then perhaps RFRA should be understood that way, too.
We begin by reiterating two doctrinal points we made a moment ago: (1) the Free Exercise Clause protects not just belief and profession but also religiously motivated conduct; and (2) individuals and organizations — whether incorporated or not — can exercise religion. It’s common ground that nonprofit religious corporations exercise religion in the sense that their activities are religiously motivated. So unless there is something disabling about mixing profit-seeking and religious practice, it follows that a faith-based, for-profit corporation can claim free-exercise protection to the extent that an aspect of its conduct is religiously motivated.
We acknowledge the novelty of the question; the Supreme Court has never considered whether a for-profit corporation may assert a free-exercise claim. See Hobby Lobby Stores, Inc. v. Sebelius, — U.S. -,
We have already mentioned Thomas and Sherbert, both of which involved claimants who lost their jobs for refusing to work on days or in ways that would violate their faith. See Thomas,
In Braunfeld v. Brown,
In United States v. Lee,
The tax system could not function if denominations were allowed to challenge the ... system because tax payments were spent in a manner that violates their religious beliefis].... Because the broad public interest in maintaining a sound-tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.
Id. at 260,
Like the merchants in Braunfeld, the Amish farmer in Lee was engaged in farming and furniture-making not for subsistence but for profit. If moneymaking were enough to foreclose the claim, the Court would not have addressed the burden, on his free-exercise rights or the public interest in the sound administration of the Social Security system. Instead, the Court gave the claim plenary review and found a compelling reason to deny an exemption.
These cases show that far from categorically excluding profit-seekers from the scope of the free-exercise right, the Supreme Court has considered their claims on the merits, granting exemptions in some and not others based on the compelling-interest test.
The government relies on a concluding statement in Lee as support for its position that profit-making is incompatible with free-exercise rights:
Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.
Id. at 261,
If the government’s view is correct, commonplace religious practices normally thought protected would fall outside the scope of the free-exercise right. The Jewish deli is the usual example. On the government’s understanding of religious liberty, a Jewish restaurant operating for profit could be denied the right to observe Kosher dietary restrictions. That cannot be right. There is nothing inherently incompatible between religious exercise and profit-seeking. The better reading of the concluding dictum in Lee is that it foreshadowed the coming holding in Smith eight years later. The references to “incidental burdens” and “statutory schemes binding on others” suggest as much.
In short, nothing in the Supreme Court’s free-exercise jurisprudence prior to Smith categorically forecloses RFRA claims by profit-seeking entities.
For the sake of completeness, we note as well that nothing in the Court’s general jurisprudence of corporate constitutional rights suggests a nonprofit limitation on organizational free-exercise rights. Prior to Smith, and continuing to the present day, the Court has held that corporations may claim some but not all constitutional rights. See Darrell A.H. Miller, Guns, Inc.: Citizens United, McDonald, and the Future of Corporate Constitutional Rights, 86 N.Y.U. L.Rev. 887, 908-11 (2011) (collecting cases).
For example, long before Citizens United reinvigorated the political-speech rights of corporations, see Citizens United v. FEC,
These cases do not yield a unifying theory of corporate constitutional rights, but Bellotti contains some language that might be read to suggest a general decisional approach: “Certain ‘purely personal’ guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the ‘historic function’ of the particular guarantee has been limited to the protection of individuals.”
Ultimately, we don’t need to parse the cases on corporate constitutional rights too finely. We are confronted here with a question of statutory interpretation. Our task is to determine whether prior to Smith it was established that a closely held, for-profit corporation could not assert a free-exercise claim. It was not so established. We conclude that K & L Contractors and Grote Industries are “persons” within the meaning of RFRA.
2. Substantial Burden
Our next question is whether the contraception mandate substantially burdens the plaintiffs’ exercise of religion. Recall that “exercise of religion” means “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (emphases added). At a minimum, a substantial burden exists when the government compels a religious person to “perform acts undeniably at odds with fundamental tenets of [his] religious beliefs.” Yoder,
Importantly, the substantial-burden inquiry does not invite the court to determine the centrality of the religious practice to the adherent’s faith; RFRA is explicit about that. And free-exercise doctrine makes it clear that the test for substantial burden does not ask whether the claimant has correctly interpreted his religious obligations. See Lee,
Checking for sincerity and religiosity is important to weed out sham claims. The religious objection must be both sincere and religious in nature. Cf. United States v. Seeger,
On this understanding of substantial burden, there can be little doubt that the contraception mandate imposes a substantial burden on the plaintiffs’ religious exercise. K & L Contractors and Grote Industries must pay $100 per day per employee if they do not include coverage for contraception and sterilization in their employee health-care plans. The Kortes and the Grotes as corporate owners and managers must arrange for their companies to provide- the mandated coverage. They object on religious grounds to doing so, explaining that providing this coverage would make them complicit in a grave moral wrong and would undermine their ability to give witness to the moral teachings of their church. No one questions their sincerity or the religiosity of their objection.
In short, the federal government has placed enormous pressure on the plaintiffs to violate their religious beliefs and conform to its regulatory mandate. Refusing
The government takes a different tack on this question, arguing that the mandate’s burden on religious exercise is insubstantial because an employee’s decision to use her insurance coverage to purchase contraception or sterilization services “cannot be attributed to” the Kortes or Grotes. In a different twist on the same argument, the government also insists that any burden on the plaintiffs’ religious exercise is too “attenuated” to count as “substantial” because the provision of contraception coverage is several steps removed from an employee’s independent decision to use contraception. For support the government relies on Zelman v. Simmons-Harris,
Zelman upheld Ohio’s school-voucher program against an Establishment Clause challenge because the public funds flowed to religious schools only through the private choice of the students’ parents.
Aside from its misplaced reliance on Zel-man and Southworth, the government’s insistence that the burden is trivial or nonexistent simply misses the point of this religious-liberty claim. The government focuses on the wrong thing — the employee’s use of contraception — and addresses the wrong question — how many steps separate the employer’s act of paying for contraception coverage and an employee’s decision to use it.
To the first point: Although the plaintiffs object on religious grounds to the use of contraception, abortifacient drugs, and sterilization, it goes without saying that they may neither inquire about nor interfere with the private choices of their employees on these subjects. They can and do, however, object to being forced to pro
The government’s “attenuation” argument posits that the mandate is too loosely connected to the use of contraception to be a substantial burden on religious exercise. Because several independent decisions separate the employer’s act of providing the mandated coverage from an employee’s eventual use of contraception, any complicity problem is insignificant or nonexistent. This argument purports to resolve the religious question underlying these cases: Does providing this coverage impermissibly assist the commission of a wrongful act in violation of the moral doctrines of the Catholic Church? No civil authority can decide that question.
To repeat, the judicial duty to decide substantial-burden questions under RFRA does not permit the court to resolve religious questions or decide whether the claimant’s understanding of his faith is mistaken. Lee,
The plaintiffs have established a prima facie case under RFRA. The government must justify the mandate under the compelling-interest test.
3. Compelling-Interest Test
RFRA requires the government to shoulder the burden of demonstrating that applying the contraception mandate “is the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). The Supreme Court has instructed us to look beyond “broadly formulated interests justifying the general applicability of government mandates” and “scrutinize[ ] the asserted harm of granting specific exemptions to particular religious claimants.” O Centro Espirita,
The compelling-interest test generally requires a “high degree of necessity.” Brown v. Entm’t Merchs. Ass’n, — U.S. -,
The government identifies two public interests — “public health” and “gender equality” — and argues that the contraception mandate furthers these interests by reducing unintended pregnancies, achieving greater parity in health-care costs, and promoting the autonomy of women both economically and in their reproductive capacities. This argument seriously misunderstands strict scrutiny. By stating the public interests so generally, the government guarantees that the mandate will flunk the test. Strict scrutiny requires a substantial congruity — a close “fit” — between the governmental interest and the means chosen to further that interest. Stating the governmental interests at such a high level of generality makes it impossible to show that the mandate is the least restrictive means of furthering them. There are many ways to promote public health and gender equality, almost all of them less burdensome on religious liberty.
We will translate a bit. The apparent aim of the mandate is to broaden access to free contraception and sterilization so that women might achieve greater control over their reproductive health. We accept this as a legitimate governmental interest. Whether it qualifies as an interest of surpassing importance is both contestable and contested.
In Lee the Supreme Court held that the sound financial administration of the Social Security system was a sufficiently compelling interest to override a religious objection to with-holding Social Security taxes.
Indeed, the government has not even tried to satisfy the least-restrictive-means component of strict scrutiny, perhaps because it is nearly impossible to do so here. The regulatory scheme grandfathers, exempts, or “accommodates” several categories of employers from the contraception mandate and does not apply to others (those with fewer than 50 employees). Since the government grants so many exceptions already, it can hardly argue against exempting these plaintiffs.
That’s just an evasion o'f RFRA. Lifting a regulatory burden is not necessarily a subsidy, and it’s not á subsidy here. The plaintiffs are not asking the government to pay for anything. They are asking for relief from a regulatory mandate that coerces them to pay for something — insurance coverage for contraception — on the sincere conviction that doing so violates their religion. They have made a strong case that RFRA entitles them to that relief.
Our conclusion aligns us with the Tenth Circuit majority and Judge Jordan in dissent in the Third Circuit, Hobby Lobby,
III. Conclusion
For the foregoing reasons, we ReveRSe and Remand with instructions to enter preliminary injunctions barring enforcement of the contraception mandate against the plaintiffs.
Notes
. The Employment Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq.
. See FDA, Birth Control: Medicines to Help You, http://www.fda.gov/ForConsumers/By Audience/ForWomen/FreePublications/ucm 313215.htm (last visited Nov. 7, 2013).
. In July the Treasury Department announced a one-year delay in the implementation of the so-called employer mandate. See Mark J. Mazur, Continuing to Implement the ACA in a Careful, Thoughtful Manner, Treasury Notes (July 2, 2013), http://www.treasury.gov/ connect/blog/pages/continuing-to-implement-the-aca-in-a-careful-thoughtful-manner-.aspx. The announcement did not mention the contraception mandate, which was already in effect. We assume that the postponement of the employer mandate has no effect on the contraception mandate; the government has not advised otherwise.
. The mandate prompted a proliferation of lawsuits by employers seeking exemptions on religious-liberty grounds. By one count more than 70 suits challenging the mandate are currently pending. See The Becket Fund for Religious Liberty, HHS Mandate Information Central, Thebecketfund.Org, http://www. becketfund.org/hhsinformationcentral.
. The company’s ethical guidelines are as follows:
1. As adherents of the Catholic faith, we hold to the teachings of the Catholic Church regarding the sanctity of human life from conception to natural death. We believe that actions intended to terminate an innocent human life by abortion, including abortion-inducing drugs, are gravely sinful. We also adhere to the Catholic Church’s teaching regarding the immorality of artificial means of contraception and sterilization.
2. As equal shareholders who together own a controlling interest in Korte & Luitjo-han Contractors, Inc., we wish to conduct the business ... in a manner that does not violate our religious faith and values.
3. Accordingly, we and Korte & Luitjo-han Contractors, Inc. cannot arrange for, pay for, provide, facilitate, or otherwise support employee health plan coverage for contraceptives, sterilization, abortion, abortion-inducing drugs, or related education and counseling, except in the limited circumstances where a physician certifies that certain sterilization procedures or drugs commonly used as contraceptives are being prescribed with the intent to treat certain medical conditions, not with the intent to prevent or terminate pregnancy, without violating our religious beliefs.
. The Grote Family includes individual plaintiffs William D. Grote, III; William Dominic Grote, IV; Walter F. Grote, Jr.; Michael R. Grote; W. Frederick Grote, III; and John R. Grote. Together with other family members not named as plaintiffs, they fully own Grote Industries, Inc., which in turn is the managing member of Grote Industries, LLC, the manufacturing firm. For ease of reference, we refer to the two companies as "Grote Industries.” William D. Grote, III is Chairman and CEO; William Dominic Grote, IV is President and Chief Operating Officer; Walter F. Grote, Jr. is a board member; Michael R. Grote is the Assistant Treasurer; W. Fred
. Just before oral argument, the government . filed a "Notice of Supplemental Briefing on Jurisdictional Issues,” drawing our attention to a brief it filed in response to a jurisdictional order from the Tenth Circuit in Hobby Lobby. The plaintiffs moved to strike this "notice.” Although the government's approach is unorthodox, we have reviewed its supplemental brief in the Tenth Circuit case. In it the government argued that the corporate plaintiffs in Hobby Lobby have standing but the owners of the corporations do not. Supplemental Brief for Appellees at 3-9, Hobby Lobby Stores, Inc. v. Sebelius,
. We note that ‘‘[w]here at least one plaintiff has standing, jurisdiction is secure and the court will adjudicate the case whether the additional plaintiffs have standing or not.” Ezell v. City of Chicago,
. Whether the corporate plaintiffs are "persons” with religious-exercise rights within the meaning of RFRA is a merits question, not a jurisdictional question. See Chafin v. Chafin, — U.S. -,
. The Anti-Injunction Act is generally assumed to be a jurisdictional bar. See Enochs v. Williams Packing & Navigation Co.,
. The First Amendment provides, in pertinent part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” U.S. Const, amend. I.
. Congress's findings and purposes in enacting RFRA are as follows:
The Congress finds that—
(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
(2) laws "neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith,494 U.S. 872 ,110 S.Ct. 1595 ,108 L.Ed.2d 876 (1990)[,] the Supreme Court virtually ' eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; —
(b) Purposes
The purposes of this chapter are—
(1) to restore the compelling interest test as set forth in Sherbert v. Verner,374 U.S. 398 ,83 S.Ct. 1790 ,10 L.Ed.2d 965 (1963)[,] and Wisconsin v. Yoder,406 U.S. 205 ,92 S.Ct 1526 ,32 L.Ed.2d 15 (1972)[,] and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
42 U.S.C. § 2000bb.
. In City of Boerne v. Flores,
. The Dictionary Act is notable for its breadth. It contains general definitions and rules of construction that apply across the United States Code, prospectively and retrospectively unless otherwise indicated. See Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L.Rev. 2085, 2110 (2002).
. For the rules of associational standing, see United Food & Commercial Workers Union Local 751 v. Brown Group, Inc.,
. See also Thomas C. Berg, The Voluntary Principle and Church Autonomy, Then and Now, 2004 BYU L. Rev. 1593 (2004); Gerard V. Bradley, Church Autonomy in the Constitutional Order: The End of Church and State?, 49 La. L.Rev. 1057 (1989); Kathleen A. Brady, Religious Organizations and Free Exercise: The Surprising Lessons of Smith, 2004 BYU L. Rev 1633 (2004); Richard W. Garnett, Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses, 53 Vill. L.Rev. 273 (2008); Christopher C. Lund, In Defense of the Ministerial Exception, 90 N.C. L. Rev. 1 (2011); Howard M. Wasserman, Prescriptive lurisdiction, Adjudicative Jurisdiction, and the Ministerial Exemption, 160 U. Pa. L.Rev. PENNumbra 289 (2012).
. We deal here with two corporations that are both closely held and managed by the families that own them. As we have explained, the Kortes and Gjrotes as controlling shareholders and directors set all company policy and personally direct the activities of their corporations; as such, they are in a position to operate their businesses in a manner that conforms to their religious commitments. The same normally will not be the case when it comes to large publicly traded corporations, two hallmarks of which are the separation of ownership from control and multimember boards of directors. See 1A William Meade Fletcher, Fletcher Cyclopedia of the Law of Corporations § 70.10 (2006 rev.).
. The Catholic Church’s teaching on the sanctity of human life and the moral wrongfulness of contraception, abortion-inducing drugs, and sterilization is well documented, as is its doctrine of moral complicity and the requirements of Christian witness. See Pope John Paul II, Evangelium Vitae [The Gospel of Life] ¶¶ 58-62 (1995), available at http://www. Vatican. va/holy_father/john_paul_ii/ encyclicals/documents/hf_jp-ii_enc_ 25031995_evangeliumvitae_en.html; Catechism of the Catholic Church ¶¶ 2258, 2270-75, 2284-87, 2366, 2370, 2399 (2d ed.1997); Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church ¶¶ 62-64, 66-68, 230-33 (2005), available at www.vatican.va/roman_curia/pontifical_ councils/justpeace/documents/rc_pc_ justpeace_doc_20060526_compendio-dott-soc_en.html.
. At oral argument the government suggested for the first time that granting a preliminary injunction against the contraception mandate might create Establishment Clause concerns. That was far too late in the litigation to raise the argument. The Supreme Court has rejected a facial Establishment Clause challenge to RLUIPA, the parallel— albeit narrower — statutory religious exemption applicable to the States. See Cutter v. Wilkinson,
. In contrast, in Lee the Social Security exemption for self-employed religious persons was extremely narrow. See United States v. Lee,
Dissenting Opinion
dissenting.
The court’s holding in these cases is as remarkable for its reasoning as for its result. The Kortes and the Grotes are business owners: Korte & Luitjohan Contractors is a construction firm, and Grote Industries manufactures motor vehicle turn signals, reflectors, emergency lighting, and other safety systems. Neither company has a declared religious purpose or mission. Both are subject to the full range of regulatory demands and constraints that government imposes on all such businesses. These include the Affordable Care Act’s (ACA’s) requirement that employers provide comprehensive health insurance to their employees that includes fully subsidized access to contraceptive care for women who choose to use it. The Kortes and the Grotes are Catholic and, consistent with the teachings of their religion, view the use of contraceptives as immoral. Invoking the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1 (“RFRA”), they object to the contraception mandate of the ACA as a substantial burden on their right to the free exercise of religion.
In exempting (preliminarily) the two corporations from the contraception man
So it is that, in the name of free exercise of religion, the court has relieved two secular corporations from a statutory obligation to provide health insurance to their employees that includes coverage of contraceptive care for the companies’ female employees. Realistically, the only religious interests at stake are those of the corporations’ owners — their faith is the source of the objection to contraception. Yet the Affordable Care Act in no way imposes on their beliefs, their worship activities, or the conduct of their personal lives. They need not use, endorse, or dispense contraception; they remain free to speak out against the use of contraception whenever and wherever they wish. In short, their own exercise of religion is wholly undisturbed. It is the corporations, as employers, which shoulder the obligations imposed by the ACA; and they need not say or do anything with respect to contraception beyond including it among the countless other medical goods and services covered by their employee health plans. The plaintiffs nonetheless object to this as facilitating the use of contraception. I would characterize it as facilitating an employee’s choice to use contraception. An employee’s choice may be inconsistent with the owners’ religious beliefs, but it is not the owners’ choice, and it does not substantially burden the exercise of their religious freedoms.
My esteemed colleagues have made the best case possible for the notion that the contraception mandate interferes with the plaintiffs’ free exercise rights; but I believe the court’s holding and rationale represent an unprecedented and unwarranted re-conception of both what the free exercise of religion entails and what constitutes a substantial burden on that exercise. The court extends a highly personal right to a secular corporation, a man-made legal fiction that has no conscience enabling belief or worship. It then deems a corporation’s duty to cover contraceptive care as an impermissible burden on the religious rights of both the corporation and its owners. It does so without considering the directness and degree of the burden on the plaintiffs’ right to the free exercise of their religion, in contravention of the plain terms of RFRA, which proscribes only substantial burdens on that right. And it
1.
In order to place today’s decision and its import in a broader perspective, I want to begin my analysis by posing several hypo-theticals illustrating how the court’s ruling in this case might play out in other factual scenarios. Part of our responsibility as an appellate court is to consider the ramifications our precedents will have for other cases and litigants. Contraception is the current focus of nationwide litigation challenging the ACA’s employer mandate; and because the duty to include coverage for contraceptives in employee health plans implicates women, sexuality, and reproduction as well as religion, one might be tempted to assume that the issues raised in this case and the court’s holding are confined, if not to the facts in this case, then to a narrow range of circumstances. But, as the court points out, RFRA applies to “all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after” RFRA’s effective date. 42 U.S.C. § 2000bb-3(a); ante at 672. The court’s holding today has the potential to reach far beyond contraception and to invite employers to seek exemptions from any number of federally-mandated employee benefits to which an employer might object on religious grounds. The following three hypotheticals are intended to show why I think this might be so. The names and facts in these hypotheticals are of my own invention; the legal provisions are not.
1. Tom Smith is the sole owner and chief executive officer of TS-Co, a software company that employs more than 50 people and is therefore subject to the ACA. TS-Co sponsors a self-insured health care plan for its employees. Joe Wilson is an employee of TS-Co who suffers from Amyotrophic Lateral Sclerosis, or ALS, commonly known as Lou Gehrig’s Disease. ALS is a progressive neurode-generative disease that affects nerve cells in the brain and spinal cord; the disease destroys motor neurons and with them the ability of the brain to initiate and control muscle function. Eventually, the disease leads to total paralysis. Most people with ALS die of respiratory failure or pneumonia, typically within three to five years of the onset of symptoms.
From another TS-Co employee, Smith learns that Wilson has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS. Smith is a devout Methodist who shares the United Methodist Church’s disapproval of research and therapies based on stem cells derived from human embryos. Smith does not wish to manage his company’s benefit plan in a way that conflicts with his religious beliefs; although he is concerned for Wilson’s health, he is adamantly opposed to facilitating the use of embryonic stem cells in any way. He thinks it unlikely that the company health plan will pay for the care Wilson will receive during his participation in the clinical trial, but when he raises the issue with the plan administrator, he learns that under section 1201 of the ACA (which in turn created a new section 2709 of the Public Health Service Act (“PHA”)), the health plan must cover the costs of routine patient care associated with clinical trials involving treatments for cancer and other life-threatening condi
Smith brings suit under RFRA a seeking declaratory and injunctive relief relieving the company of the obligation to comply with section 2709 of the PHA, insofar as it requires the coverage, of costs associated with clinical trials employing embryonic stem cell therapies. Smith argues that requiring his company’s health plan to cover the costs of any medical care associated with a treatment to which he objects on religious grounds interferes with his wish to run the company in a manner consistent with his religious convictions. Based on the court’s decision today, Smith and TS-Co would have a colorable argument that the coverage required by section 2709 imposes a substantial burden on their free exercise rights. Although the government might have an argument that section 2709 is supported by a compelling interest in the development of effective therapies for life-threatening conditions such as ALS, based on this court’s least-restrictive means analysis, a court might conclude that the government itself, in lieu of objecting employers, could pay for all costs associated with an individual’s participation in a clinical trial. In the meantime, granting TS-Co an exemption from the PHA would mean that Wilson’s workplace insurance would not cover any costs associated with his participation in the clinical trial; and that, as a practical matter, might render Wilson unable to participate in the trial.
2. Bill Blasdell is the sole owner and chief executive officer of Get Out!, a corporation which operates a small chain of three outdoor-gear stores. Prior to enactment of the ACA, the company did not provide health insurance to its employees; but with 75 employees, Get Out! is now subject to the ACA’s employer mandate. Blasdell has been a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God. Consistent with that view, Christian Science historically has disapproved of most forms of conventional medicine. Nonetheless, in practice, many Christian Scientists have availed themselves of conventional medical treatments, and in recent years, the church itself has become more tolerant of conventional medicine. See, e.g., Paul Vitello, Christian Science Church Seeks Truce With Modem Medicine, New York Times A20 (Mar. 24, 2010).
Earlier in his life, Blasdell was among those Christian Scientists who embraced traditional medicine. But after witnessing his wife suffer through a brutal treatment regimen for breast cancer at a premier medical center, only to die as a result of complications from the treatment and missteps by the medical staff, Blasdell came to believe, consistent with the teachings of his church, that conventional medicine does far more harm than good. His belief was
As a result of his religious convictions, Blasdell is adamantly opposed to facilitating the use of conventional medical care by his employees. He is willing for Get Out! to sponsor an employee health plan that pays for care at Christian Science nursing centers, but he believes that his company
After Get Out!’s request for an exemption from the employer mandate is denied, Blasdell and the company bring suit under RFRA contending that the employer mandate is a substantial burden on the free exercise of their religious beliefs. Pursuant to the court’s decision today, both Blasdell and Get Out! would have a color-able argument that compliance with the employer mandate, by facilitating company employees’ use of conventional medical treatments to which Blasdell is opposed on religious grounds, represents a substantial burden on his religious freedom and that of the corporation. And although the government, again, would no doubt urge that it has a compelling interest in pursuing universal access to healthcare, Blasdell and his firm could invoke this court’s decision for the argument that the ACA’s exemptions belie that interest, and that, in any event, the government could pursue its goal through publicly-funded healthcare, individual tax credits, or other means that do not require employers to subsidize employee healthcare that is inconsistent with their own religious beliefs.
3. Red Pie, Inc., sells and ships to consumers nationwide a variety of frozen, specialty pizzas. Bill and Betty Ann Bowers and their three children own and operate the firm, which has over 100 full-time employees. The Bowers belong to a church which is affiliated with the Southern Baptist Convention. The 'Convention’s position on marriage and sexuality may be summarized as follows:
We affirm God’s plan for marriage and sexual intimacy — one man, and one woman, for life. Homosexuality is not a “valid alternative lifestyle.” The Bible condemns it as sin. It is not, however, unforgivable sin. The same redemption available to all sinners is available to homosexuals. They, too, may become new creations in Christ.
Southern Baptist Convention, Position Statement on Sexuality, available at http:// www.sbc.net/aboutus/pssexuality.asp (last visited Nov. 7, 2013). The Bowers’ local congregation endorses and promotes the same view; in the past several years, the pastor of their church has given several sermons condemning same-sex marriage, adoption by gay and lesbian parents, and the repeal of the military’s “Don’t Ask, Don’t Tell” policy. The Bowers accept and follow their church’s teaching on, homosexuality. When same-sex marriage was recently legalized in their state as a result of a court decision, the Bowers, knowing that they had a number of gay and lesbian individuals in their employ and in keeping with their religious beliefs, amended the Red Pie employee benefits plan to make clear that spousal insurance benefits are not available to the same-sex spouses of Red Pie employees; as their state does not prohibit employment discrimination on the basis of sexual orientation, and because the ACA does not require employers to provide insurance coverage to employee spouses, this change was legally permitted.
Mr. and Mrs. Bowers become alarmed when they learn that one of their employees, Stan Jones, has submitted a request to take three weeks of unpaid leave under
After Jones contacts the Wages and Hours Division of the Department of Labor, the Department files suit against Red Pie under the FMLA contending that Jones was both wrongfully denied his right to parental leave under the statute and fired in retaliation for having requested FMLA ' leave. See 29 U.S.C. §§ 2615(a)(1); 2617(b)(2). Red Pie invokes RFRA as a defense to the Department’s suit, contending that the FMLA as applied to Red Pie in this instance would constitute a substantial burden on the free exercise rights of the corporation and its owners, as it would force them either to recognize and facilitate a parental arrangement they view as sinful or suffer substantial penalties under the FMLA for refusing to do so.
The Department of Labor potentially might fair better at the next, strict-scrutiny phase of the analysis. Certainly, in terms of the least restrictive means of
These hypothetieals illustrate the uncertainty that the court’s expansive interpretation and application of RFRA brings to a number of statutory schemes in which Congress has accorded specific rights to employees (not to mention other parties), the recognition and accommodation of which a corporation, in addition to its owners, can now say burden their religious interests. By easting the mandatory provision of benefits to an employee as a substantial burden on the free exercise rights of a closely-held corporation and its owners, without considering whether compliance with the mandate directly interferes with the free exercise of religion or is at most a modest burden on a plaintiffs free exercise rights, the court’s rationale subjects a potentially wide range of statutory protections to strict' scrutiny, one of the most demanding standards known in our legal system. In some ways, this is reminiscent of the Lochner era, when an employer could claim that the extension of statutory protections to its workers constituted an undue infringement on the freedom of contract and the right to operate a private, lawful business as the owner wished. And by exempting employers from extending to employees the rights specified by statute, the government is forced to pick up the slack and take compensatory action to protect the rights of those employees; short of that, the employee of the religiously-motivated employer is left with no right at all. I doubt that this is what Congress intended when it enacted RFRA.
2.
I begin my discussion of the specific legal points presented by this appeal with where my colleagues and I agree. First, I agree that the Anti-Injunction Act poses no bar to this action. This is not a suit aimed at restraining the collection of a tax — in this case, the penalties for noncompliance with the ACA. Rather, it is a direct challenge to a substantive provision of the ACA: the contraception mandate.
I am also in accord with my colleagues on standing. The government has not contested the standing of any of the plaintiffs in these cases, and I ‘ agree with my colleagues that both the corporations and their owners indeed do have standing. Because the burden of the contraception mandate falls directly on the two corporations as employers, and because the corporations contend that they have their own right to free exercise of religion which is
This is not to say that I believe that the respective interests of the corporations and their owners are congruent. The fact that the obligations imposed by the mandate fall upon the corporation, whereas it is the individual owners — and only the individuals, in my view — who hold free exercise rights, matters a great deal to whether those rights are substantially burdened. But that is a point that goes to the merits of this lawsuit rather than the standing of either set of plaintiffs, as the court points out. Ante at 667 n. 9; see also Gilardi,
3.
I turn first to the free exercise rights of the corporations. One premise underlying the RFRA claims advanced in these cases is that the interests, rights, and obligations of a closely-held corporation are identical to those of their owners. In fact, as I have argued previously, they are distinct. In electing to do business through the corporate form, the Kortes and the Grotes have separated themselves from their companies: the corporations are independent legal entities with legal rights and obligations independent of their individual owners. Grote v. Sebelius,
I concede, as I must, that the Supreme Court has not restricted the invocation of free exercise rights solely to individuals, but has allowed — albeit with very little discussion — houses of worship, including those which have incorporated, to assert such rights. See ante at 674-75, citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
Still, although a religious organization enjoys associational standing to represent the free exercise rights of its members, see United Food & Commercial Workers Union Local 751 v. Brown Group, Inc.,
Not all rights that the Constitution accords to a person are extended to corporations. The Supreme Court has recognized that “[Corporate identity has been determinative in several decisions denying corporations certain constitutional rights, such as the privilege against compulsory self-incrimination.” First Nat’l Bank of Boston v. Bellotti,
[C]ertain “purely personal” guarantees ... are unavailable to corporations and other organizations because the “historic function” of the particular guarantee has been limited to the protection of individuals. United States v. White,322 U.S. 694 , 698-701,64 S.Ct. 1248 , 1251-52 [88 L.Ed. 1542 ] (1944). Whether or not a particular guarantee is “purely personal” or is unavailable to corporations for some other reason depends on the nature, history, and purpose of the particular constitutional provision.
Ibid; see also Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc.,
I have been struck in reviewing the handful of decisions granting corporations free exercise rights (and for that matter, the plaintiffs’ briefs in this case) by how wanting they are in articulating a substantive, affirmative explanation for why any type of corporation, let alone a secular, for-profit corporation, should be accorded religious rights. E.g., Hobby Lobby Stores, Inc. v. Sebelius,
Perhaps the best argument in favor of according free exercise rights to corporations is that the right to free speech already has been recognized as among those rights that corporations enjoy. Citizens United v. Fed. Election Comm’n,
Religion, by contrast, is a personal undertaking. Conestoga Wood Specialties,
The fact that a corporation qualifies as a person under the Dictionary Act, 1 U.S.C. § 1, see ante at 673-74; Hobby Lobby Stores,
The First Amendment, of course, does not define “religion.” More than a century ago, the Supreme Court said that “[t]he term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.” Davis v. Beason,
1. Because we hold it for a fundamental and undeniable truth, “that religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction,not by force or violence. The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of'Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of a particular Civil Society do it with a saving of his allegiance to the Universal Sovereign.... ”
See Everson v. Bd. of Educ. of Ewing Twp.,
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression' of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
Letter from President Thomas Jefferson to Nehemiah Dodge, et al., Danbury Baptist Association (Jan. 1, 1801), reproduced in Braunfeld v. Brown,
Such remarks are consistent with the historical underpinnings of the free exercise clause. Neither the congressional record underlying the enactment of the First Amendment nor the records of the state legislatures which subsequently ratified the amendment provide any help in ascertaining what legislators meant by “religion” and the free exercise thereof. See Michael W. McConnell, The Origins & Historical Understanding of Free Exercise of Religion, 103 Harv. L.Rev. 1409, 1481, 1483, 1485 (1990); Vincent Phillip Muñoz, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress, 31 Harv. J.L. & Pub. Pol.
First, by 1789, the constitutions of all thirteen states, save Connecticut, included religious liberty provisions, and many referenced the right as the freedom to worship one’s God according to the dictate’s of one’s conscience. See McConnell, Origins & Historical Understanding, 103 HaRV. L.Rev. at 1457 n. 242 (reproducing text of state provisions); City of Boeme v. Flores,
These state provisions set the stage for the drafting, debate, and adoption of the First Amendment’s free exercise clause. The clause as proposed and adopted by the House of Representatives incorporated language recognizing “freedom of conscience”; but the version adopted by the Senate, by the ensuing conference committee, and which was submitted to and ratified by the States, omitted that language. See McConnell, Origins & Historical Understanding, 103 Harv. L.R. at 1481-84. It is not clear why “conscience” was omitted from the adopted version of the free exercise clause, but it is doubtful that the elimination was meant to signify a different understanding of what the clause protected. As Professor McConnell and others observe, “freedom of religion” and “freedom of conscience” were terms that were used interchangeably in discussions of religious liberty. E.g., McConnell, Origins & Historical Understanding, 103 Harv. L.Rev. at 1488, 1493-94; Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L.Rev. 915, 933-34 & n. 80 (1992). McConnell suggests that “rights of conscience” was dropped either to eliminate a redundancy, to the extent it signified the same thing as the free exercise of religion, or to emphasize that it was only the freedom of religious conscience, as opposed to the freedom of nonreligious belief, that was meant to be protected. McConnell, Origins & Historical Understanding, 103 Harv. L.Rev. at 1488-96. Either way, it is clear that the clause was intended to protect the exercise of religious conscience. Id. at 1495-96. And as shown by both the state provisions addressing the freedom of religion and the other contemporaneous writings I have cited, the exércise of religious conscience was understood to be a matter between the individual and his God — not, perhaps, in the more modern sense of believing whatever one wants, but rather as a reflection that the individual owed his or her obedience on moral matters directly to God. Id. at 1498-99; Hamburger, A Constitutional Right of Religious Exemption, 60 Geo. Wash. L.Rev. at 933, 938. The understanding that the exercise of religion was a matter of the individual’s relationship with and obedience to God was also consistent with the multiplicity of minority religions practiced in the United States by the sec
All of this reinforces what one would otherwise intuit about religion: that it is inextricably intertwined with characteristics that are uniquely human: conscience, belief, faith, and devotion. Religious beliefs have to do with such fundamental questions as the nature of mankind, where we came from, our place in the world, what happens when we die, and our relationships with and obligations to other people. Only the human mind can entertain such questions.
A corporation is a legal construct which does not have the sentence and. conscience to entertain such ultimate questions. “In the words of Chief Justice Marshall, a corporation is ‘an artificial being, invisible, intangible, and existing only in contemplation of law.’ ” Browning-Ferris Indus. of Vt. v. Kelco Disposal, Inc., supra,
Indeed, it strikes me as potentially demeaning to religious faith to say that a corporation should be said to possess the same right to free exercise of religion that a human being enjoys in this country. Inextricably bound as it is with a person’s sense of himself, his origins, the world, and what life is, religious belief (including the lack of such belief) is a defining trait of humankind; and this is one reason why we view it as a core component of individual freedom: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Planned Parenthood of Se. Pennsylvania v. Casey,
Perhaps there are good reasons to extend the right of free exercise to religious organizations, including not-for-profit corporations organized to pursue religious ends. See Conestoga Wood Specialties,
Certainly I agree that the wish to profit does not automatically disqualify an individual from asserting religious interests. See ante at 679-81; Joseph Burstyn, Inc. v. Wilson,
There are, finally, significant logical difficulties posed by attributing religious rights to secular corporations. Whatever religious rights a corporation might theoretically exercise can only come from the people who establish, own, and manage a corporation. See Conestoga Wood Specialties,
Second, suppose that the company’s ownership changes. What happens then to the beliefs we have attributed to the corporation based on its ownership? Are challenges such as the one presented in this case subject to re-litigation every time there is a change in corporation ownership?
Third, are the religious beliefs of corporate owners solely determinative of the corporation’s religious principles? Suppose, for example, that a corporation’s owners have entirely entrusted the management of the corporation to its longtime CEO, who is the public face of the corporation and who also happens to have strongly held religious beliefs about the way in which the corporation should be run. Are her beliefs attributable to the corporation? Or suppose that the owners of a corporation have no professed religious interest in the way in which a corporation is run, but the focus of the corporation is on serving members of a particular religion — selling kosher or halal food -products, for example. See ante at 681. Can the corporation be said to hold the religious beliefs of its target market, even if its owners and managers do not?
At oral argument, Grote Industries’ counsel conceded that if ownership of the company changed, as by death and inheritance, then a court might have to revisit the nature of the corporation’s asserted religious interests. But why is that true if the corporation has its own free exercise rights? By permitting a corporation to assert its own religious rights, we are, I would think, saying that the corporation may possess such rights independent of what its owners believe and assert; a change in ownership by itself would theoretically portend nothing about the status of the corporation’s religious interests.
Although the court has held that Korte & Luitjohan Contractors and Grote Industries have free exercise rights, what it is saying, in the end, is that it is the religious beliefs of the Kortes and Grotes that matter; the corporations, in effect, embody the expression of their beliefs. See ante at 659, 684-85; see also Autocam,
4.
RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(a) & (b). By its reference to substantial burdens, RFRA expressly calls for a qualitative assessment of the burden that a challenged statute or other government action imposes on an individual’s exercise of religion. As I discuss below, courts have long engaged in such assessments, distinguishing between direct and indirect, and between minor and meaningful burdens on the exercise of religion. Yet the court today rejects any such inquiry, departing from both historical practice and the language of RFRA.
Following the Tenth Circuit’s lead in Hobby Lobby, the majority rejects any assessment of how direct or attenuated the burden imposed on the plaintiff’s religious practices may be, ante at 683-85, reasoning that it is the equivalent of asking whether the burdened religious practice is central to the plaintiffs faith or whether the plaintiff is interpreting his religious beliefs correctly, ante at 682-83. Instead, the majority holds that the pertinent inquiry is whether the penalties for- noncompliance with the government’s mandate exert a sufficiently coercive influence on the plaintiffs. Ante at 683 (citing Hobby Lobby,
This coercion-only test is one of the Tenth Circuit’s invention. It has the superficial support of language found in multiple court decisions, see, e.g., Hobbie v. Unemployment Appeals Comm’n of Fla.,
The coercion analysis addresses one way in which government may potentially interfere with a plaintiffs free exercise rights. Abdulhaseeb v. Calbone,
The third of the Abdulhaseeb categories is exemplified by Thomas,
Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.
To my mind, this is not a substantial pressure case like Thomas; rather, this is a more straightforward instance of the government overtly requiring a plaintiff to do something that he asserts is contrary to his religious beliefs. The ACA unambiguously requires the two corporate plaintiffs to include contraceptive coverage in their employee health plans. Even absent the substantial financial penalties for non-compliance, the two companies presumably would be subject to suit by the government or by an employee for injunctive relief ordering them to comply if they did not otherwise do so, see ante at 660 (citing 29 U.S.C. §§ 1132, 1185d); and, in any event, most individuals and corporations will not feel free to deliberately ignore what the law plainly requires them to do. So the entire inquiry into whether the ACA places substantial pressure on the plaintiffs to take action over their objections is unnecessary and beside the point. There is no dispute that it does.
What the coercion inquiry does not answer, ' and which the court must turn to next, is whether the government, by requiring the two companies to take action to which the companies and their owners object on religious grounds, is imposing a substantial burden on the plaintiffs’ free exercise of religion. This is where the Tenth Circuit’s decision in Hobby Lobby, now embraced by this court, goes awry. Hobby Lobby postulates that evaluating the nature and degree of the burden imposed by the mandate will require an impermissible inquiry into whether the plaintiffs are correctly interpreting and following religious dogma.
This holding effectively rewrites RFRA. The statute does not prohibit the government from putting substantial pressure on a plaintiff to do anything, or to be a party to anything, to which he has an honest religious objection; rather, it states that the government “shall not substantially burden a person’s exercise of religion.... ” § 2000bb-l(a) (emphasis mine). Congress used the term “substantially” to modify “burden,” and the relevant inquiry considers how that burden affects the individual’s ability to believe, profess, and practice his religion. As Judge Edwards points out in Gilardi, RFRA was specifically drafted in that way to make clear that not every burden imposed by government on religious exercise need be justified by a compelling governmental interest.
No doubt, assessing the substantiality of the claimed burden on one’s free exercise of religion will sometimes call for difficult judgments, as the Supreme Court recognized in Smith,
And, in fact, when applying the substantial-burden requirement found in both RFRA and RLUIPA, 42 U.S.C. §§ 2000cc(a)(1), 2000ce-1(a), this circuit and others have always considered the nature and degree of the burden imposed by government action, holding in multiple cases that de minimis or otherwise insignificant burdens on the free exercise of religion do not warrant relief under these statutes. E.g., Eagle Cove Camp & Conf. Ctr., Inc. v. Town of Woodboro, Wisconsin,
Evaluating the nature of the burden imposed is not a test of the orthodoxy, consistency, or theological merit of a plaintiffs stated religious beliefs. Provided the plaintiff is sincere, ante at 682-83, we may accept that his objection is one grounded, in his religious beliefs. But simply because someone has a good-faith objection, based in religion, to a particular government action does not mean that his right to the free exercise of religion is actually and substantially burdened by that action. Courts routinely undertake examinations of the degree to which a given law, regulation, or other government action does or does not intrude upon an individual’s constitutionally protected interests. See Bowen v. Roy,
Thus, for example, in assessing the sub-stantiality of the burden imposed on a plaintiffs free exercise rights, we may consider whether the burden is direct or indirect. Braunfeld v. Brown, supra,
[I]t cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions. We do not believe that such an effect is an absolute test for determining whether the legislation violated the freedom of religion protected by the First Amendment.
Id. at 606-07,
Free exercise cases have also drawn a distinction between what a challenged law or practice requires the plaintiff himself to do, and what it permits another party— specifically, the government — to do to which plaintiff objects on religious
Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that appellees engage in any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. “[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government.” Sherbert v. Verner,374 U.S. 398 , 412,83 S.Ct. 1790 , 1798 [10 L.Ed.2d 965 ] (1963) (Douglas, J., concurring).
As a result, Roy may no more prevail on his religious objection to the Government’s use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government’s filing cabinets. The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual right to dictate the conduct of the government’s internal procedures.
Id. at 699-700,
Building upon the Supreme Court’s holding in Roy, the D.C. Circuit in Kaemmerling v. Lappin, supra,
... Kaemmerling does not allege facts sufficient to state a substantial burden on his religious exercise because he cannot identify any “exercise” which is the subject of the burden to which he objects. The extraction and storage of DNA information are entirely activities of the FBI, in which Kaemmerling plays no role and which occur after the [Bureau of Prisons] has taken his fluid or tissue sample (to which he does not object). The government’s extraction, analysis, and storage of Kaemmerling’s DNA information does not call for Ka-emmerling to modify his religious behavior in any way — it involves no action or forbearance on his part, nor does it otherwise interfere with any religious act in which he engages. Although the government’s activities with his fluid or tissue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be said to hamper his religious exercise because' they do not “pressure [him] to modify his behavior and to violate his beliefs.” Thomas,450 U.S. at 718 ,101 S.Ct. 1425 .
Kaemmerling alleges no religious observance that the DNA Act impedes, or acts in violation of his religious beliefs that it pressures him to perform. Religious exercise necessarily involves an action or practice, as in Sherbert, where the denial of unemployment benefits “impede[d] the observance” of the plaintiffs religion by pressuring her to work on Saturday in violation of the tenets of her religion,374 U.S. at 404 ,83 S.Ct. 1790 , or in Yoder, where the compulsory education law compelled the Amish to “perform acts undeniably at odds with fundamental tenets of their religious beliefs,”406 U.S. at 218 ,92 S.Ct. 1526 . Kaemmerling, in contrast, alleges that the DNA Act’s requirement that the federal government collect and store his DNA information requires the government to act in ways that violate his religious beliefs, but he suggests no way in which these governmental acts pressure him to modify his own behavior in any way that would violate his beliefs. See Appellant’s Br. at 21 (describing alleged substantial burden as “knowing [his] strongly held beliefs had been violated by a[n] unholy act of an oppressive regime”).
These lines' of cases thus supply two criteria that can help us to determine whether the burden imposed by government action upon a plaintiffs free exercise rights is substantial. First, the Braunfeld line of cases instructs us to look at the burden resulting from government action and consider the way in which it purportedly' interferes with an individual’s exercise of religion: is the burden direct, such that it actually prevents a person from behaving in accordance with his religion, or does it impose only an indirect, incidental burden- that, for example, makes the observance of his religion more costly but does not actually preclude his religious exercise? ■ Second, the Roy line- of cases draws a distinction between what the law requires a plaintiff himself to do, and what it permits or requires a third party to do. These cases recognize that although the
Admittedly, neither line speaks directly to the issues before us now: the Supreme Court has never before considered whether and under what circumstances the statutorily-mandated provision of a particular benefit to an employee will substantially burden the employer’s free exercise rights. (The precedent that is closest to that scenario is United States v. Lee, in which the Court held that the objecting Amish employer was obliged to pay Social Security taxes notwithstanding his religious objection to doing so, given the government’s compelling interest in a uniform national system of retirement pay.) The cases I have just discussed are nonetheless relevant in two senses. First, like the various circuit cases finding certain burdens on free exercise rights to be insubstantial, supra at 709-10, they confirm that we can and in fact must examine the nature and degree of the burden resulting from government action to decide whether it constitutes a substantial burden for purpose of RFRA. Second, they demonstrate that in making that assessment, we must consider precisely how the objected-to action relates to the individual’s exercise of his religious rights.
Taking my cue from these cases, I move on to consider precisely how the ACA’s requirement that a corporate employer provide health insurance to its employees that includes contraceptive coverage does or does not burden the free exercise rights of its owners. Because the ACA does not actually require the individual plaintiffs themselves to do anything contrary to their religious beliefs, and because their desire not to have their companies facilitate the use of contraception necessarily implicates the private choices of employees as to how they will use the insurance coverage they have earned as a benefit of their work, I am convinced that any burden imposed on the free exercise rights of the individual plaintiffs is too attenuated to qualify as a substantial burden.
5.
A substantial burden is one that bears direct, primary, and fundamental responsibility for making the plaintiffs religious exercise impracticable. Ante at 682-83; Nelson v. Miller,
For two key reasons, the mandate poses no direct burden on the Kortes’ and Grotes’ exercise of religion. First, the mandate does not require them to alter their own practices in any way. As the court’s articulation of the asserted burden makes clear, what they are objecting to is the use of contraception by third parties, which the plaintiffs do not wish to facilitate. Second, to the extent the Kortes’ and the Grotes’ concern has to do with facilitating what they believe to be immor
The first point is obvious, and I have made it before, but it cannot be repeated often enough. Nothing in the ACA requires the Kortes or the Grotes themselves to do anything that violates the Catholic Church’s disapproval of contraception. They need not purchase, use, or dispense contraceptives; they need not promote or endorse the use of contraceptives; nor need they remain silent as to what their faith teaches them about the immorality of contraceptive use. See Gilardi,
It is the corporations, not the individual plaintiffs, which as the employers are obligated to provide the requisite coverage to employees of the firms. The Kortes and the Grotes incorporated their businesses for a reason. Business owners form corporations precisely to insulate themselves from the obligations of the corporation and to create a separate entity to carry on the business. The corporations and only the corporations bear the obligation to provide the insurance coverage to employees; the Kortes and the Grotes bear no personal obligation to pay for the coverage. Thus the money — the “material support,” as the court describes it — comes from Korte & Luitjohan Contractors and Grote Industries, not from the pockets of the individual plaintiffs.
Moreover, what the companies are providing is a form of employee compensation, like wages. Handing over a paycheck to an employee may materially facilitate the purchase of any number of (perfectly legál) goods and services — alcohol, lottery tickets, cigarettes, adult pornography, eontra-
This is. the sense in which Zelman v. Simmons-Harris,
Yes, Zelman and Southworth can be distinguished from this case: Zelman involved an establishment clause claim, and Southworth involved a free speech claim, whereas this case presents a free exercise clause claim. But at the bottom of all three cases is the claim that forcing the plaintiff to give his financial aid to activity or speech that he finds objectionable cannot be reconciled with his First Amendment freedoms. Central to the rejection of this claim in Zelman and Southworth was official agnosticism, which permitted the funds to be used as third parties (in Zelman, the parents, and in Southworth, the student council) chose, with no reasonable perception that those choices were attributable to either the government or the objecting plaintiff. The same reasoning ■ explains why mandatory, employer-sponsored insurance coverage which includes contraception as a covered service does not meaningfully burden the plaintiffs’ free exercise rights. By including contraception in the required coverage, the government is in no way requiring any company owner to use, endorse, or dispense contraception in violation of his own religious beliefs; the choice whether and under what circumstances to use that coverage is left to the individual employee and her physician, to be made in private, with no participation by the employer. Although funds from the company health plan are being used to facilitate that choice, no objective observer would attribute that choice to the company, let alone its owner. See Gilardi,
Finally, it is worth considering the ramifications of deeming one choice that may be made by an employee using her workplace healthcare plan to be a burden' on her employer’s free exercise rights. Again, what the ACA compels a covered employer to provide is not a contraceptive care plan but a comprehensive health care plan that includes thousands of medical services, including contraceptive care. It may seem both possible and reasonable to carve out the coverage of contraceptives from the rest of the ACA-mandated insurance plan, in that the plaintiffs have a categorical objection to the use of contraceptives (insofar as they are used to prevent contraception) and the contraception mandate itself stands out in that it requires coverage of contraceptives without copayment by the employee.
Nor, logically, would the potential objections that employers could raise be limited to health insurance. ' Federal law grants any number of rights to employees, the recognition and accommodation of which an employer might find to be inconsistent with his religious beliefs. My hypothetical about extending FMLA leave to a gay parent is but one example. Likewise, beyond the employer-employee relationship, there may be any number of federal rights bestowed on third parties — customers, vendors, creditors, debtors — to which the-owner of a business theoretically might pose a religious objection. Today’s decision certainly opens the door to challenging the enforcement of those rights against a business as a burden on the free exercise rights of its owner.
What also should not be overlooked is that by exempting a corporation from a statute that grants a particular right to the corporation’s employee or to another third party on the ground that the mandate-impinges on the religious rights of the corporate owners, the court is depriving the third party of a right that Congress meant to give him. The Supreme Court has hinted at a reluctance to recognize a plaintiffs request for a religious exemption from a legal requirement when granting the exemption would burden the rights of others. See Texas Monthly, Inc. v. Bullock,
I mentioned at the outset that the court’s decision struck me as reminiscent of the Lochner era; let me explain why I think this is so. Lochner and its progeny struck down a host of wage, hour, and other workplace regulations on the theory that they impermissibility intruded on the rights of contract, property, and to engage in a lawful, private business as protected by the due process clauses of the Fifth and Fourteenth Amendments. See, e.g., Lochner v. New York,
One flaw of the Lochner jurisprudence is that while the Court purported to protect the constitutional rights of workers as well as employers, it blinded itself to the reality that employees frequently did not possess bargaining power enabling them to pursue and protect their own liberty interests, so that by invalidating regulations meant to protect workers, the • Court was in fact depriving them of their contractual and other rights; substantive due process was being wielded as a club to defeat important workplace protections. When the Court signaled an end to the Lochner era with its decision in West Coast Hotel Co. v. Parrish,
The principle which must control our decision is not in doubt. The constitutional provision invoked is the due process clause of the Fourteen Amendment governing the states, as the due process clause invoked in the Adkins Case governed Congress. In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has a history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interest of the community is due process.
Id. at 391,
This statute does not compel anybody to pay anything. It simply forbids employment at rates below those fixed as the minimum requirement of health and right living. It is safe to assume that women will not be employed at even the lowest wages allowed unless they earn them, or unless the employer’s business can sustain the burden. In short the law in its character and operation is like hundreds of so-called police laws that have been up-held.
Id. at 396-97,
What the plaintiffs’ claim has in common with the Lochner jurisprudence is that it elevates the daily affairs of a secular, for-profit corporation to constitutional status, treating the business as the embodiment of its owners’ religious principles, such that a burden on the corporation is conceived of as a burden on the religious rights of the corporate owners. In this wáy, a statutory mandate that is amply justified by the government’s police power, which falls
When the Kortes and the Grotes chose to enter the business world, they did not surrender their free exercise rights, but they did assume responsibility for the regulatory obligations imposed on all like businesses, including statutory obligations to their employees. See Lee,
6.
If it were necessary to reach the second prong of the RFRA inquiry, I would find that the contraception mandate is supported by a compelling governmental in
The government has an obvious and compelling interest in broadening Americans’ access to health insurance. That all Americans have a keen interest in access to medical goods and services is beyond question. As the costs of both health care and health insurance have risen substantially in recent decades and the number of workplace insurance plans has declined, the need for health insurance reform has become more urgent. In 2010, the year that the ACA was enacted, some 50 million Americans lacked health insurance— roughly 18 percent of the non-elderly population. See Dep’t of Health & Human Servs., Office of the Ass’t Sec’y for Planning & Evaluation, ASPE Issue Brief— Overview of the Uninsured in the United States: A Summary of the 2011 Current Population Survey, available at http:// aspe.hhs.gov/health/reports/2011/ cpshealthins2011/ib.shtml (last visited Nov. 7, 2013). Obtaining insurance in the individual market was expensive: In 2010, average monthly per-person premiums in the individual market' for health insurance ranged from a low of $136 in Alabama to $437 in Massachusetts, for a nationwide average of $215 (more than $2,500 per year). Henry J. Kaiser Family Foundation, State Health Fads, Average Monthly Per Person Premiums in the Individual Market, available at http://http://kff.org/ other/state-indicator/individual-premiums/ (last .visited Nov. 7, 2013). Needless to say, many individuals and families — those who could afford the premiums — spent far more. At the same time, medical debtors — whether uninsured or underin-sured — were becoming a much larger share of those filing for bankruptcy. See David U. Himmelstein, et al., Medical Bankruptcy in the United States, 2007: Results of a National Study, 122 Am. J. Med. (No. 8) 741 (Aug.2009). Uncompensated hospital care (including both charity care and services for which hospitals expected compensation but did not get it) had increased tenfold over the prior three decades, from $3.9 billion in 1980, to $39.3 billion in 2010. American Hospital Association, Uncompensated Hospital Care Cost Fact Sheet at 3 (January 2013), available at http://www.aha.org/content/13/l-2013-ncompensated-care-fs.pdf (last visited Nov. 7, 2013).
The ACA’s employer mandate, coupled with an individual mandate applicable to all persons not covered by employer-sponsored health plans and otherwise not eligible for Medicare or Medicaid, was a logical, although certainly not the only, means of moving the country toward universal health insurance. It builds upon the American tradition of employer-sponsored health insurance that began in the early 20th century. See, e.g., David Blumenthal, Employer-Sponsored Health Ins. in the U.S. — Origins and Implications, 355 New EngláND J. Med. No. 1, 82 (July 6, 2006). It takes advantage of risk-spreading, economies of scale, quality control, and other features of employer-procured insurance. And, although this was the work of a Democratic President and Congress, it had the advantage of having been first proposed by a Republican President — Nixon—nearly 40 years ago. See Special Message from President Richard M. Nixon to the Congress Proposing a Comprehensive Health Insurance Plan (Feb. 6, 1974), available at
Compelling government interests in both preventive health care and gender equality support the inclusion of contraceptives within the mandated coverage that insurance plans — including employer-sponsored plans — must provide without copayment by the insured. As the court has noted, included with the standard coverage required of all non-grandfathered health plans are a series of preventive services that must be provided to all adults without copayment, including immunizations for tetanus, meningitis, measles, influenza, hepatitis B, and other communicable diseases; screening for high cholesterol, diabetes, HIV infection, high blood pressure, colorectal cancer, and other potentially life-threatening conditions; and both screening and counseling for alcohol abuse, tobacco use, and obesity. See http://www. healthcare.gov/what-are-my-preventive-care-benefits (last visited Nov. 7, 2013). The rationale behind requiring coverage of such services without copayment is obvious: these are services which either prevent illness altogether or facilitate detection at an earlier stage when it is more amenable to treatment, thereby reducing the direct and indirect costs of illness otherwise borne by the insured, his family, his employer, his insurer, medical providers, and the government. The Women’s Health Amendment to the ACA, spearheaded by U.S. Senator Barbara Mikulski, expanded the range of requisite preventive care to include a separate set of preventive services for women. In proposing the amendment, Senator Mikulski noted that many women forego preventive screenings for the conditions that statistically are most likely to result in their death— breast, cervical, colorectal, ovarian and lung cancer, and heart and vascular disease — either because they lack insurance, the services are not covered by their insurance plans, or because the large copay-ments required by their insurance companies for these screenings are beyond their financial means. “Women of childbearing age incur 68 percent more out of pocket health care costs than men,” she pointed out. “My amendment guarantees access to critical preventive screening and care for women to combat their number one killers and provides it at no cost. This amendment eliminates a big barrier of high copayments.” Press release: Mikul-ski Puts Women First in Health Care Debate (November 30, 2009), available at http://www.mikulski.senate.gov/media/ pressrelease/ll-30-2009-2.cfm (last visited Nov. 7, 2013); see also Jessica Arons & Lindsay Rosenthal, Center for American Progress, Facts About the Health Insurance Compensation Gap (June 2012) (“Even with employer-based coverage, women have higher out-of-pocket medical costs than men. Overall, women of reproductive age spend 68 percent more out of pocket than men on health care, in part because their reproductive health care needs require more frequent health care visits and are not always adequately covered by their insurance. Among women insured by employer-based plans, oral contraceptives alone account for one-third of their total out-of-pocket health care spending.”), available at http://www.american progress.org/issues/healthcare/news/2012/ 06/01/11666/facts-about-the-health-insurance-eompensation-gap/ (last visited Nov. 7, 2013). As the court has noted, with the passage of the Women’s Health Amendment, a panel of experts convened by the Institute of Medicine determined
It should come as no surprise that contraceptive care was included in the set of preventive services that the Institute of Medicine panel deemed essential to women’s health. Ninety-nine percent of American women aged 15 to 44 who have engaged in sex with men have used at least one form of birth control. Institute of Medicine, Committee on Preventive Services for Women, Clinical Preventive Services for Women: Closing the Gaps, 103 (2011), available at http://www.nap.edu/ catalog.php?record_id=13181; Guttmacher Institute, Fact Sheet: Contraceptive Use in the United States, at 1 (Aug.2013), available at http://www.guttmacher.org/' pubs/fb_contr_usc.pdf (last visited Nov. 7, 2013); William D. Mosher & Jo Jones, Centers for Disease Control, Nat’l. Ctr. for Health Statistics, Use of Contraception in the United States: 1928-2008, 5, 15, & Table 1 (Aug.2010), available at http:// www.cdc.gov/nchs/data/series/sr_23/sr23_ 029.pdf (last visited Nov. 7, 2013. A woman’s ability to control whether and when she will become pregnant has highly significant impacts on her health, her child’s health, and the economic well-being of herself and her family. Unintended pregnancies pose risks to both mother and fetus in that a woman, neither planning to be pregnant nor realizing that she is, may both delay prenatal care and continue practices (including smoking and drinking) that endanger the health of the developing fetus. Id. at 103. Pregnancy is contraindicated altogether for women with certain health conditions. Id. at 103-04. Intervals between pregnancies also matter, as pregnancies commencing less than eighteen months after a prior delivery pose higher risks of pre-term births and low birth weight. Id. at 103. An unintended pregnancy may also put financial strain on the woman and her family, to the extent that the birth will require her to take time off from work, may cause her to quit work altogether if she does not have or cannot afford to pay for alternate childcare, and adds substantial, unplanned-for expenses to the family budget. Unintended pregnancies resulting in birth also impose large costs on the public fisc: In 2008, for example, 65 percent of births resulting from unintended pregnancies, were paid for by public insurance programs (primarily Medicaid) and resulted in total estimated costs of $12.5 billion. Guttmacher Institute, Fact Sheet: Facts on Unintended Pregnancy in the United States (Oct. 2013), available at http://www.guttmacher. org/pubs/FB-Unintended-Pregnancy-US. html (last visited Nov. 7, 2013). Finally, unintended and unwanted pregnancies naturally account for the lion’s share of induced abortions. Currently, nearly one-half (49 percent) of all pregnancies in the United States are unintended, and roughly 40 percent of those pregnancies (22 per
The right to use contraception is, of course, constitutionally protected. See Griswold v. Connecticut,
I am also convinced that making contraceptive coverage part of the standardized insurance that non-grandfathered employers -must- provide to their employees is the least restrictive means of furthering these compelling interests. I have my doubts about the feasibility of creating, let alone enacting, a publicly-funded contraception plan, or establishing a system of tax credits to contraceptive manufacturers' or the women who use contraception, given that it has taken more than 60 years to enact a
Nor can we view the contraception provisions of the ACA in isolation. As I have now pointed out several times, the contraception mandate is merely one requirement in a comprehensive set of requirements that the statute imposes on all health plans, and as I have discussed, there are any number of medical services that health plans cover and medical choices that an insured might make to which a particular employer might object on religious grounds. Logically, the court’s decision to relieve Korte & Luitjo-han Contractors and Grote Industries of the contraception mandate cannot be limited to contraception alone. The relevant question, then, is not whether the government feasibly may ensure access to contraceptive care through other means, but whether it may feasibly ensure access to all types of care to which employers might object on religious grounds. The answer to that is obvious: it is not feasible to expect the government to establish a public insurance option that picks up responsibility for the crazy-quilt of individual services that any individual employer might find incompatible with his individual religious beliefs.
The Supreme Court remarked in Lee that “[rjeligious beliefs can be accommodated, but there is a point at which accommodation would ‘radically restrict the operational latitude of the legislature.’ ”
The exemptions already provided for in the AGA neither undermine the compelling nature of the government’s interests in broadening Americans’ access to healthcare and ensuring that women have comprehensive healthcare nor do they make religious-based exemptions any more reasonable or feasible. First, given the financial burdens associated with workplace health plans, exempting employers with fewer than 50 fulltime employees from the obligation to provide insurance is an entirely practical, logical, and justifiable accommodation to the financial needs of small employers, particularly in the first phase of a national effort to expand access to healthcare. Individuals who work for those employers, like part-time employees, self-employed individuals, and unemployed individuals are steered to the insurance exchanges established under the ACA, where the government offers subsidies to those who cannot shoulder the full cost of insurance on their own. Likewise, grandfathering existing workplace health plans follows a time-honored and common-sensical path in expediting the implementation of a new, complex, and potentially burdensome regulation. Employees participating in those plans by definition already have health insurance, so the accommodation to employers represented by this exemption does not unduly burden employees nor undermine the central goal of the legislation. Existing plans will lose the benefit of this exemption as they make major changes to their health plans that, inter alia, reduce benefits or increase costs to employees. 45 C.F.R. § 147.140(g). There is no reason to think this will take long for most employers,
ing in part). And there is a demonstrable difference between a not-for-profit employer whose mission is expressly defined by religious goals and a secular corporation whose business is commerce for profit.
7.
Speaking for the Court in Lyng v. Nw. Indian Cemetery Protective Ass’n, Justice O’Connor had this to say about the limited reach of the free exercise clause:
However 'much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires. A broad range of government activities — from social welfare programs to foreign aid to conservation projects — will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent it is feasible, is for the legislatures and other institutions.
What the plaintiffs seek accommodation for here is a demand on their conduct, rather than their religious beliefs; and the Court has always recognized that “the
The court’s holding granting the Kortes and the Grotes, along with their two secular corporations, a religiously-based exemption from an insurance mandate represents a dramatic turn in free exercise jurisprudence for all of the reasons I have discussed. It bestows a highly personal right to religious exercise on two secular, for-profit corporations that have no facility of thought, conscience, or belief. It deems the religious rights of the plaintiffs burdened by the contraceptive mandate without consideration of the indirect and minimal intrusion on their exercise of religion. And it disregards the extent to which the exemption from the mandate burdens the rights of the plaintiffs’ employees. Finally, it establishes a precedent which invites free-exercise challenges to a host of federal laws by secular corporations which, in reality, have no religious beliefs of their own and cannot exercise religion.
For all of these reasons I have set forth here, in my prior dissents, Korte v. Sebelius,
I respectfully dissent.
. See American Cancer Society, Cancer Action Network, Fact Sheet: Affordable Care Act: Clinical Trials ("Nearly 20% of cancer patients are eligible for participation in cancer clinical trials, but enrollment among adults consistently ranges between 3-5%.”), available at http://http:// ac-scan.org/pdf7healthcare/implementation/factsheets/hcr-clinical-trials.pdf (last visited Nov. 7, 2013).
. Whether RFRA may be invoked as a defense in a suit between private individuals is a developing issue which has produced a split among the circuits. Compare Hankins v. Lyght,
. This is not to say that an employer incurs no costs as a result of the leave. Although FMLA leave is unpaid, an employer is required to continue providing health coverage to the absent employee on the same terms and conditions that would apply if he were still working, 29 U.S.C. § 2614(a)(2), and of course, the employer must bear the cost of having someone else fill in for the employee on leave even as he holds a position open for the employee in anticipation of his return from leave, § 2614(a)(1). In both respects, the employer lends considerable assistance to the employee taking leave.
. Of the cases cited by this court and by the District of Columbia Circuit in Gilardi, only Tony & Susan Alamo Found, v. Sec'y of Labor,
. The majority postulates that if a for-profit business cannot assert free exercise rights, then theoretically a Jewish restaurant could be denied the right to observe dietary restrictions. Ante at 681. Three responses come to mind. First, the owner and operator of the restaurant, assuming that he is an observant Jew, might well have a meritorious contention that his own religious exercise is directly and substantially burdened by having to handle and serve non-kosher food; as I have said, I do not believe that the profit-motive disqualifies the owner from asserting his religious interests. Second, to the extent the restaurant’s target clientele is Jewish, the business might have third-party standing to assert the free exercise rights of its customers. See Craig v. Boren,
. The prisoner filed suit under the Religious Land Use and Institutionalized Persons Act ("RLUIPA”), 42 U.S.C. § 2000cc-1(a).
. Some of the RLUIPA cases may be distinguished superficially, in that the plaintiffs were prisoners who sought damages for occasional denials of kosher or halal meals or other accommodations to their religious needs. E.g., Rapier,
. The sparse record before us does not reveal whether and to what degree the contraceptive mandate may increase the cost of health insurance to employers. Full coverage of contraception may (like the mandated coverage of other preventive services) save insurers and employers money in the long run by reducing the multiple costs associated with unplanned pregnancies. See infra at 144-145; Institute of Medicine, Committee on Preventive Services for Women, Clinical Preventive Services for Women: Closing the Gaps, 107 (2011) (costs of unintended pregnancies in United States in 2002 estimated to be $5 billion, while costs saved due to contraception estimated to be $19.3 billion), available at http:// www.nap.edu/catalog.php?record_id=13181. In any case, the plaintiffs’ .argument here turns not on the additional cost of providing contraceptive coverage but to facilitating the use of contraceptives by providing that coverage,- period.
. As Judge Edwards put it in Gilardi, "the Gilardis are no more of an 'essential cause’ of increasing the use of contraception when they authorize Freshway [their company] to pay for a benefits plan that employees might use to get contraception than when they authorize wages that an employee might use to purchase contraception she would not otherwise be able to afford."
. The record does not disclose what the plaintiffs' employees contribute toward the cost of their health insurance. The average employee currently contributes $999 toward the $5,884 cost of an employer-sponsored, single-coverage plan (roughly a 17-percent share), and $4,565 toward the $16,351 cost of an employer-sponsored, family-coverage plan (roughly a 28-percent share). See Henry J. Kaiser Family Foundation, 2013 Employer Health Benefits Survey, Summary of Findings & Ex. B (Aug. 20, 2013), available at http://kff. org/report-section/2013-summary-of-findings/ (last visited Nov. 7, 2013).
.See generally Howell v. Motorola, Inc.,
. It is misleading, however, to say, as many reports do, that the mandate requires the coverage of contraceptives at no cost to the employee, given that most employees pay some portion of the cost of their workplace health insurance. See supra n. 10. Many other preventive and screening healthcare services are likewise to be provided to the employee without a copayment under the ACA. See http:// www.healthcare.gov/what-are-my-preventive-care-benefits (listing 15 categories of preventive care to be covered with no copayments for all insureds, 22 categories of such care for women, and 25 categories for children) (last visited Nov. 7, 2013).
. The variety of government requirements that individuals, businesses, and religious organizations have challenged on free exercise grounds makes this clear. See, e.g., Tony & Susan Alamo Found. v. Sec'y of Labor, supra,
. As Judge Edwards has pointed out:
No Free Exercise decision issued by the Supreme Court has recognized a substantial burden on a plaintiff’s religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is merely required to take action that might enable other people to do things that are at odds with the plaintiff’s religious beliefs.
. A woman would either have to enroll in a government program dedicated to providing contraceptive insurance coverage, establish a relationship with a government-subsidized contraceptive manufacturer, or claim credits for the purchase of contraception on her income tax return. Each alternative, aside from imposing extra burdens on her to obtain contraceptive coverage, singles her out as a sexually-active woman who wishes to use contraception.
. The government's mid-range estimate is that “66 percent of small employer plans and 45 percent of large employer plans will relinquish their grandfather status by the end of 2013.” Interim Final Rules for Group Health Plans and Health Insurance Coverage Relat