Geneva College v. Secretary United States DePartment of HealthGeneva College v. Secretary United States DePartment of Health
Paul M. Pohl, Esquire, (Argued), John D. Goetz, Esquire, Leon F. DeJulius, Jr., Esquire, Ira M. Karoll, Esquire, Alison M. Kilmartin, Esquire, Mary Pat Stahler, Esquire, Jones Day, Pittsburgh, PA, for Appellees Most Reverend Lawrence T. Persico, Bishop of the Roman Catholic Diocese of Erie, as Trustee of the Roman Catholic Diocese of Erie, a Charitable Trust; The Roman Catholic Diocese of Erie; ST. Martin Center, Inc., an affiliate Nonprofit Corporation of Catholic Charities of the Diocese of Erie; Prince of Peace Center, Inc., an Affiliate Nonprofit Corporation Of Catholic Preparatory School, an Affiliate Nonprofit Corporation Of The Roman Catholic Diocese of Erie; Most Reverend David A. Zubik, Bishop of the Roman Catholic Diocese of Pittsburgh, as Trustee of the Roman Catholic Diocese of Pittsburgh, a Charitable Trust, Roman Catholic Diocese of Pittsburgh, Catholic Charities Diocese Of Pittsburgh.
Deborah J. Dewart, Esquire, Swansboro, NC, for Amicus Liberty, Life and Law Foundation.
Witold J. Walczak, Esquire, Sara J. Rose, Esquire, Brigitte Amiri, Esquire, Jennifer Lee, Esquire, New York, NY, Daniel Mach, Esquire, American Civil Liberties Union Foundation, Washington, DC, for Amicus Julian Bond, The American Civil Liberties Union and the American Civil Liberties Union of Pennsylvania.
Charles E. Davidow, Esquire, Andree J. Goldsmith, Esquire, Karin Dryhurst, Esquire, Paul, Weiss, Rifkind, Wharton & Garrison, Marcia D. Greenberger, Esquire, Judith G. Waxman, Esquire, Emily J. Martin, Esquire, Gretchen Borchelt, Esquire, Leila Abolfazli, Esquire, Washington, DC, for Amicus National Women’s Law Center and Twenty Other National, State and Local Organizations.
Ayesha N. Khan, Esquire, Washington, DC, for Amicus American United for Separation of Church and State.
Sarah Somers, Esquire, Martha Jane Perkins, Esquire, Dipti Singh, Esquire, Carrboro, NC, for National Health Law Program, American Public Health Association, National Family Planning & Reproductive Health Association, National Women’s Health Network, National Latina Institute For Reproductive Health, National Asian Pacific American Women’s Forum, Asian Americans Advancing Justice, AAJC, Asian Americans Advancing Justice, Los Angeles, Asian & Pacific Islander American Health Forum, National Hispanic Medical Association, Forward Together, IPAS, Sexuality Information and Education Council of the U.S. (Siecus), HIV Law Project, and California Women’s Law Center as Amici Curiae.
Kimberlee Wood Colby, Esquire, Springfield, VA, for The Association of Gospel Rescue Missions, Prison Fellowship Ministries, Association of Christian Schools International, National Association of Evangelicals, Ethics & Religious Liberty Commission of the Southern Baptist Convention, American Bible Society, The Lutheran Church—Missouri Synod, Institutional Religious Freedom Alliance, and Christian Legal Society in Support of Appellees and Urging Affirmance.
Before: McKEE, Chief Judge, RENDELL, SLOVITER, Circuit Judges.
RENDELL, Circuit Judge:
The appellees in these consolidated appeals challenge the preventive services requirements of the Patient Protection and Affordable Care Act (ACA),
I. BACKGROUND
A. Statutory and Regulatory Background
1. The Affordable Care Act, the Preventive Services Coverage Requirement, and the Accommodation for Religious Nonprofit Organizations
In 2010, Congress passed the ACA, which requires group health plans and health insurance issuers offering health insurance coverage1 to cover preventive care and screenings for women, without cost sharing (such as a copayment, coinsurance, or a deductible), as provided for in guidelines established by the Department of Health and Human Services (HHS).
The implementing regulations authorize an exemption from contraceptive coverage for the group health plan of a religious employer.
After notice-and-comment rulemaking, the Department of the Treasury, the Department of Labor, and the Department of Health and Human Services (the Departments) published final regulations in July 2013 that provided relief for organizations that, while not religious employers, nonetheless oppose coverage on account of their religious objections. These regulations include an accommodation for group health plans established or maintained by eligible organizations (and group health coverage provided in connection with such plans). See
To take advantage of the accommodation to the contraceptive coverage requirement, the eligible organization must complete the self-certification form, EBSA Form 700, issued by the Department of Labor’s Employee Benefits Security Administration, indicating that it has a religious objection to providing coverage for the required contraceptive services. The eligible organization then is to provide a copy of the form to its insurance issuer or third-party administrator.
Furthermore, the health insurance issuer or third-party administrator, not the eligible organization, provides notice to the plan participants and beneficiaries regarding contraceptive coverage separate from materials that are distributed in connection with the eligible organization’s group health coverage, specifying that the eligible organization does not administer or fund contraceptive benefits, but that the third party administrator or issuer, as applicable, provides separate payments for contraceptive services, and must provide contact information for questions and complaints. See
2. RFRA Challenge to the Accommodation
The appellees challenge the ACA’s contraceptive coverage requirement as posing a substantial burden on their religious exercise, in violation of RFRA. RFRA places requirements on all federal statutes that impact a person’s exercise of religion, even when that federal statute is a rule of general applicability.
Congress enacted RFRA in 1993 in response to the Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In Smith, the Supreme Court rejected the balancing test for evaluating claims under the Free Exercise Clause of the First Amendment 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), under which the Court asked whether the challenged law substantially burdened a religious practice and, if it did, whether that burden was justified by a compelling governmental interest. The Smith Court concluded that the continued application of the compelling-interest test would produce a constitutional right to ignore neutral laws of general applicability and would open the prospect of constitutionally required religious exemptions from civil obligations of almost every conceivable kind, which the First Amendment does not require. Id. at 888-89, 110 S.Ct. 1595. The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. Id. at 885, 110 S.Ct. 1595 (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 451, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)). Making an individual’s obligation to obey a generally applicable law contingent upon the individual’s religious beliefs, except where the state interest is compelling, permits that individual, by virtue of his beliefs, to become a law unto himself, which contradicts both constitutional tradition and common sense. Id. (quoting Reynolds v. United States, 98 U.S. 145, 167, 25 L.Ed. 244 (1878)).
B. Factual Background and Procedural History7
We review here the following District Court opinions: two preliminary injunctions issued in Geneva College v. Sebelius, and a preliminary injunction and permanent injunction issued in the related cases of Most Reverend David A. Zubik v. Sebelius and Most Reverend Lawrence T. Persico v. Sebelius. The Zubik and Persico appeals were consolidated and now have also been consolidated with the Geneva appeal.
1. Geneva Appellee
Appellee Geneva College (Geneva) is a nonprofit institution of higher learning established by the Reformed Presbyterian Church of North America. Geneva believes that it would be sinful and immoral for it to intentionally participate in, pay for, facilitate, enable, or otherwise support access to abortion (including emergency contraceptives Plan B and ella, and two intrauterine devices, all of which Geneva characterizes as causing abortion) because such participation violates religious prohibitions on murder. Geneva contracts with an insurance issuer for its student and employee health insurance plans.
2. Geneva District Court Opinions
The District Court granted Geneva’s motion for a preliminary injunction with respect to its student plan on June 18, 2013, and enjoined the government from applying or enforcing
The District Court concluded that Geneva had shown a likelihood of success on the merits with respect to the presence of a substantial burden under RFRA and found that three Supreme Court free exercise cases supported Geneva’s argument regarding the presence of a substantial burden under RFRA. First, it noted that in Yoder, 406 U.S. at 234-35, 92 S.Ct. 1526, a stаte compulsory education law for children up to age sixteen, with a penalty of a criminal fine, violated the free exercise rights of the Amish plaintiffs. Second, in Sherbert, 374 U.S. at 410, 83 S.Ct. 1790, the state could not withhold unemployment benefits from a worker who refused employment on the grounds that working Saturdays violated her religious beliefs.
The District Court then granted Geneva’s second motion for a preliminary injunction, this time with respect to its employee plan, on December 23, 2013. The District Court again enjoined the government from enforcing
The District Court was convinced by Geneva’s explanation that, although Geneva must engage in the same conduct that it did before the ACA—namely, notify the insurance carrier that it would not provide coverage for the objected-to services—the effect of that conduct is now different. Before the ACA, Geneva’s notification resulted in its employees being unable to obtain coverage for contraceptive services; after the ACA, Geneva’s employees are still provided access to the services as a matter of law. Under the ACA, Geneva has two choices: (1) provide insurance cov-
Geneva argues that the District Court was correct that a substantial burden is present here because (1) complying with either the contraceptive coverage requirement or the accommodation would cause Geneva to trigger, facilitate, or be complicit in the commission of acts that it likens to abortion; and (2) the fines that Geneva faces for its refusal to comply with the contraceptive coverage requirement or the accommodation would pressure it to conform.
3. Zubik/Persico Appellees
Appellees in the Zubik and Persico cases include: the Bishop of Pittsburgh, David A. Zubik, and the Bishop of Erie, Lawrence T. Persico; the Diocese of Pittsburgh and the Diocese of Erie, both of which qualify for the exemption to the contraceptive coverage requirement under
4. Zubik/Persico District Court Opinions
The District Court issued a preliminary injunction that applied to both the Zubik and Persico cases on November 21, 2013, and converted that injunction into a permanent injunction on December 20, 2013.
The District Court characterized the issue before it as whether [the appellees], being non-secular in nature, are likely to succeed on the merits of proving that their right to freely exercise their religion has been substantially burdened by the ‘accommodation’ which requires the Bishops of two separate Dioceses ... to sign a form which thereby facilitates/initiates the provision of contraceptive products, services, and counseling. (J.A. 116.) The Zubik/Persico appellees conceded that they have provided similar information as is required by the self-certification form to their third-party administrator in the past. However, their past actions barred the provision of contraceptive products, services, or counseling. Now, under the ACA, this information will be used to facilitate/initiate the provision of contraceptive products, services, or counseling—in direct contravention to their religious tenets. (Id.) Accordingly, the District Court concluded that the government is impermissibly asking the appellees for documentation for what the appellees sincerely believe is an immoral purpose, and thus they cannot provide it. (J.A. 117.) In
Furthermore, the District Court held that the differing application of the exemption and the accommodation—the former applying to the Catholic Church, and the latter applying to Catholic nonprofit organizations—has the effect of dividing the Catholic Church, thereby imposing a substantial burden. [T]he religious employer ‘accommodation’ separates the ‘good works (faith in action) employers’ from the ‘houses of worship employers’ within the Catholic Church by refusing to allow the ‘good works employers’ the same burden-free exercise of their religion under the exemption. (J.A. 118.) The District Court questioned why religious employers who share the same religious tenets are not exempt, or why all religious employers do not fall within the accommodation, such that even though [the appellees] here share identical, religious beliefs, and even though they share the same persons as the religious heads of their organizations, the heads of [the appellees’] service organizations may not fully exercise their right to those specific beliefs, when acting as the heads of the charitable and educational arms of the Church. (J.A. 118, 120.) The District Court concluded that the religious employer ‘exemption’ enables some religious employers to completely eliminate the provision оf contraceptive products, services, and counseling through the Dioceses’ health plans and third parties, whereas the religious employer ‘accommodation’ requires other religious employers (often times the same member with the same sincerely-held beliefs) to take affirmative actions to facilitate/initiate the provision of contraceptive products, services, and counseling—albeit from a third-party. (J.A. 120-21.)
The Zubik/Persico appellees argue that the District Court was correct in finding a substantial burden because (1) they interpret the accommodation to require them to authorize and designate a third party to add the objectionable coverage to their plans, in violation of their sincerely held religious beliefs that they cannot provide or facilitate that coverage; and (2) the different scope of the religious employer exemption and the accommodation impermissibly splits the Catholic Church.
The government, as appellant in both the Zubik/Persico and Geneva appeals, argues that the District Courts were incorrect and the appellees are not subject to a substantial burden, because the submission of the form is not in itself burdensome and does not give rise to the coverage. Rather, federal law requires third parties—insurance issuers and third-party administrators—to provide coverage after the appellees refuse to provide contraceptive coverage themselves. By invoking the accommodation process, the appellees do not facilitate the provision of contraceptive coverage by third parties. Rather, the third parties providing coverage do so as a result of legal obligations imposed by the ACA.
II. DISCUSSION
A. Standard of Review
We employ a tripartite standard of review for preliminary injunctions. We review the District Court’s findings of fact for clear error. Legal conclusions are assessed de novo. The ultimate decision to grant or deny the injunction is reviewed
B. Likelihood of Success as to Substantial Burden
1. Trigger/Facilitation/Complicity Argument
We first must identify what conduct the appellees contend is burdensome to their religious exercise. It is not the act of filling out or submitting EBSA Form 700 itself. The appellees conceded at oral argument that the mere act of completing EBSA Form 700 does not impose a burden on their religious exercise.
The appellees’ essential challenge is that providing the self-certification form to the insurance issuer or third-party administrator triggers the provision of the contraceptive coverage to their employees and students. The appellees reframed this proposition at oral argument, stating that the accommodation requires them to be complicit in sin. Appellees urge that there is a causal link between providing notification of their religious objection to providing contraceptive coverage and the offering of contraceptive coverage by a third party. That link, they argue, makes them complicit in the provision of certain forms of contraception, which is prohibited by their religious beliefs.
Without testing the appellees’ religious beliefs, we must nonetheless objectively assess whether the appellees’ compliance with the self-certification procedure does, in fact, trigger, facilitate, or make them complicit in the provision of contraceptive coverage. Through RFRA’s adoption of the Supreme Court’s pre-Smith free exercise jurisprudence, Congress has required qualitative assessment of the merits of the appellees’ RFRA claims. See Korte, 735 F.3d at 705 (Rovner, J., dissenting).10 It is virtually self-evident that the Free Exercise Clause does not require an exemption from a governmental program unless, at a minimum, inclusion in the program actually burdens the claimant’s freedom to exercise religious rights. Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 303, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985). Furthermore, the
While the Supreme Court reinforced in Hobby Lobby that we should defer to the reasonableness of the appellees’ religious beliefs, this does not bar our objective evaluation of the nature of the claimed burden and the substantiality of that burden on the appellees’ religious exercise. This involves an assessment of how the regulatory measure actually works. Indeed, how else are we to decide whether the appellees’ religious exercise is substantially burdened? [T]here is nothing about RFRA or First Amendment jurisprudence that requires the Court to accept [the appellees’] characterization of the regulatory scheme on its face. Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 385 (6th Cir.2014) (quoting Roman Catholic Archbishop of Wash. v. Sebelius, 19 F.Supp.3d 48, 71 (D.D.C.2013)). We may consider the nature of the action required of the appellees, the connection between that action and the appellees’ beliefs, and the extent to which that action interferes with or otherwise affects the appellees’ exercise of religion—all without delving into the appellees’ beliefs. See, e.g., Korte, 735 F.3d at 710 (Rovner, J., dissenting). For example, the court in Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C.Cir.2008), [a]ccept[ed] as true the factual allegations that Kaemmerling’s beliefs are sincere and of a religious nature—but not the legal conclusion, cast as a factual allegation, that his religious exercise is substantially burdened. The court further explained: we conclude that 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. Id.11
The Supreme Court in Hobby Lobby evaluated whether the requirement to provide contraceptive coverage absent the accommodation procedure substantially burdened the religious exercise of the owners of closely-held, for-profit corporations. The issue of whether there is an actual burden was easily resolved in Hobby Lobby, since there was little doubt that the actual provision of services did render the plaintiffs complicit. And in Hobby Lobby, the Court came to its conclusion that, without any accommodation, the contraceptive coverage requirement imposed a
The appellees urge that a burden exists here because the submission of the self-certification form triggers, facilitates, and makes them complicit in the provision of objected-to services. But after testing that assertion, we cannot agree that the submission of the self-certification form has the effect the appellees claim. First, the self-certification form does not trigger or facilitate the provision of contraceptive coverage because coverage is mandated to be otherwise provided by federal law. Federal law, rather than any involvement by the appellees in filling out or submitting the self-certification form, creates the obligation of the insurance issuers and third-party administrators to provide coverage for contraceptive services. As Judge Posner has explained, this is not a situation where the self-certification form enables the provision of the very contraceptive services that the appellees find sinful. Rather, [f]ederal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured plans, to cover contraceptive services. Notre Dame, 743 F.3d at 554. Thus, federal law, not the submission of the self-certification form, enables the provision of contraceptive coverage.
The Court of Appeals for the Sixth Circuit adopted Judge Posner’s logic that the obligation to cover contraception is not triggered by the act of self-certification. Rather, it is triggered by the force of law—the ACA and its implementing regulations. See Mich. Catholic Conference, 755 F.3d at 387 (Submitting the self-certification form to the insurance issuer or third-party administrator does not ‘trigger’ contraceptive coverage; it is federal law that requires the insurance issuer or the
Moreover, the regulations specific to the Zubik and Persico appellees’ self-insured plan are no different in this respect, and in no way cause the appellees to facilitate or trigger the provision of contraceptive coverage. Those Department of Labor regulations state that EBSA Form 700 shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered.
Moreover, the submission of the self-certification form does not make the appellees complicit in the provision of contraceptive coverage. If anything, because
Thus, we cannot agree with the appellees’ characterization of the effect of submitting the form as triggering, facilitating, or making them complicit in the provision of contraceptive coverage. At oral argument, the appellees argued that it was not merely the filing of the form that imposed a burden, but, rather, what follows from it.
In Bowen, the Supreme Court determined that the Free Exercise Clause did not require the government to accommodate a religiously based objection to the statutory requirement that a Social Security number be provided to applicants for certain welfare benefits. Roy, a Native American, argued that the government’s use of his daughter’s Social Security number would rob the spirit of his daughter and prevent her from attaining greater spiritual power. 476 U.S. at 696, 106 S.Ct. 2147. Roy’s claim was unsuccessful because [t]he Federal Government’s use of a Social Security number for ... [his daughter] d[id] not itself in any degree impair Roy’s ‘freedom to believe, express, and exercise’ his religion. Id. at 700, 106 S.Ct. 2147. Rather, Roy was attempting to use the Free Exercise Clause to dictate how the government should transact its business.
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. ... The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.
Id. at 699-700, 106 S.Ct. 2147 (quoting Sherbert, 374 U.S. at 412, 83 S.Ct. 1790 (Douglas, J., concurring)).
And, echoing the principles of Bowen, in Lyng, members of Native American tribes claimed that the federal government violated their rights under the Free Exercise Clause by permitting timber harvesting and construction on land used for religious purposes. 485 U.S. at 441-42, 108 S.Ct. 1319. The Supreme Court concluded that the Free Exercise Clause does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religiоns but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. Id. at 450-51, 108 S.Ct. 1319.
Building on this line of cases, the Court of Appeals for the D.C. Circuit concluded that a federal prisoner failed to state a RFRA claim when he sought to enjoin application of the DNA Analysis Backlog Elimination Act on the basis that DNA
The government’s extraction, analysis, and storage of Kaemmerling’s DNA information does not call for Kaemmerling 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.
Id. at 679 (alteration in original) (quoting Thomas, 450 U.S. at 718, 101 S.Ct. 1425). Like the parents in Bowen, Kaemmerling’s opposition to government collection and storage of his DNA profile does not contend that any act of the government pressures him to change his behavior and violate his religion, but only seeks to require the government itself to conduct its affairs in conformance with his religion. Id. at 680.
Thus, the case law clearly draws a distinction between what the law may impose on a person over religious objections, and what it permits or requires a third party to do. Although that person may have a religious objection to what the government, or another third party, does with something that the law requires to be provided (whether it be a Social Security number, DNA, or a form that states that the person religiously objects to providing contraceptive coverage), RFRA does not necessarily permit that person to impose a restraint on another’s action based on the claim that the action is religiously abhorrent.
These cases confirm that we can, indeed should, examine the nature and degree of the asserted burden to decide whether it amounts to a substantial burden under RFRA. Furthermore, we must assess how the objected-to action relates to the appellees’ religious exercise, and whether the appellees’ objections focus on the action itself or the result of the action, i.e., the obligations placed upon a third party.
Far from triggering the provision of contraceptive coverage to the appellees’ employees and students, EBSA Form 700 totally removes the appellees from providing those services. [T]he regulations provide an opt-out mechanism that shifts to third parties the obligation to provide contraceptive coverage to which health insurance beneficiaries are entitled, and that fastidiously relieves [the appellees] of any obligation to contract, arrange, pay, or refer for access to contraception.... Priests for Life, 772 F.3d at 252. The self-certification form requires the eligible organization or its plan to provide a copy to the organization’s insurance issuer or third-party administrator in order for the plan to be administered in accordance with both the eligible organization’s religious objection and the contraceptive coverage requirement. The ACA already takes into account beliefs like those of the appellees and accommodates them. The accommodation in this case consists in the organization’s ... washing its hands of any involvement in contraceptive coverage, and the insurer and the third-party administrator taking up the slack under compulsion of federal law. Notre Dame, 743 F.3d at 557. The regulations accommodate the interests of religious institutions that pro-
Because we find that the self-certification procedure does not cause or trigger the provision of contraceptive coverage, appellees are unable to show that their religious exercise is burdened. Even if we were to conclude that there is a burden imposed on the appellees’ religious exercise, we would be hard-pressed to find that it is substantial. Whether a burden is substantial under RFRA is a question of law, not a question of fact. See Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C.Cir.2011). RFRA’s reference to substantial burdens expressly calls for a qualitative assessment of the burden that the accommodation imposes on the appellees’ exercise of religion. Korte, 735 F.3d at 705 (Rovner, J., dissenting). RFRA calls for a threshold inquiry into the nature of the burden placed on the appellees’ free exercise of religion: substantial is a term of degree that invites the courts to distinguish between different types of burdens. Id. at 708.
We have stated that a substantial burden exists where (1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other [persons] versus abandoning one of the precepts of his religion in order to receive a benefit; or (2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs. See Washington v. Klem, 497 F.3d 272, 280 (3d Cir.2007) (interpreting a related statute, the Religious Land Use and Institutionalized Persons Act, which applies to prisoner and land use cases). However, a government action does not constitute a substantial burden, even if the challenged action would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs, if the government action does not coerce the individuals to violate their religious beliefs or deny them the rights, benefits, and privileges enjoyed by other citizens. Lyng, 485 U.S. at 449, 108 S.Ct. 1319. Under this definition, can the submission of the self-certification form, which relieves the appellees of any connection to the provision of the objected-to contraceptive services, really impose a substantial burden on the appellees’ free exercise of religion? We think not. While Hobby Lobby rejected the argument that the burden was too attenuated because the actual use of the objected-to contraceptive methods was a matter of individual choice, here, where the actual provision of contraceptive coverage is by a third party, the burden is not merely attenuated at the outset but totally disconnected from the appellees.
The reasoning of the District Courts was misguided in two ways. First, the District Courts accepted the appellees’ characterization of the accommodation as causing them to facilitate, act as the central cog, or serve as the necessary stimulus for the provision of the objected-to contraceptive services. (J.A. 60-61.) For the reasons we have detailed, we cannot accept that characterization as a matter of fact or law. Second, the District Courts focused on the coercive effect, i.e., the fact that the appellees faced a choice: submit the self-certification form and facilitate the provision of contraceptive coverage, or pay fines for noncompliance. However, now that we have dispelled the notion that the self-certification procedure is burdensome, we need not consider whether the burden is substantial, which involves consideration of the intensity of the coercion faced by the appellees. We will accordingly reverse the challenged injunctions.
The appellees in Zubik/Persico argue that a second substantial burden is imposed on their religious exercise in that the contraceptive coverage regulatory scheme improperly partitions the Catholic Church by making the Dioceses eligible for the exemption, while the Catholic nonprofits can only qualify for the accommodation, even though all the Catholic entities share the same religious beliefs. The District Court agreed with the appellees and concluded that thе contraceptive mandate would cause a division between the Dioceses and their nonprofit, religious affiliated/related spiritual/charitable/educational organizations which fulfill portions of Dioceses’ mission. Further, any nonprofit, religious affiliated/related organizations expelled from the Dioceses’ health insurance plans would require significant restructuring of the plans which would adversely affect the benefits received from pooling resources. (J.A. 76 (citation omitted).) We conclude that the inclusion of houses of worship in the exemption and religious nonprofits in the accommodation does not impose a substantial burden on the Zubik/Persico appellees.
The definition of a religious employer who receives an exemption from the contraceptive coverage requirement under the regulations is based on longstanding Internal Revenue Code provisions. See
Furthermore, we are not persuaded that the challenged accommodation poses any burden on the exempted appellees’ religious exercise, particularly a burden that would require the appellees to expel the religious nonprofit organizations from the Dioceses’ health insurance plans. See, e.g., Roman Catholic Archdiocese of N.Y. v. Sebelius, 987 F.Supp.2d 232, 252 (E.D.N.Y. 2013) (First, it is not at all clear why the Diocesan plaintiffs would have to ‘expel’ their non-exempt affiliates from their health plans.... Second, even if the law did pressure the Diocesan plaintiffs to ‘expel’ their affiliates, plaintiffs do not state that the Diocesan plaintiffs’ religious beliefs require them to have all their affiliate
Thus, we cannot agree that the different treatment afforded to the Catholic Church as a house worship versus the Catholic nonprofit organizations imposes a substantial burden in violation of RFRA.
III. CONCLUSION
We will reverse the District Courts’ orders granting the challenged injunctions. Because we conclude that the appellees have not shown a likelihood of success on the merits of their RFRA claim, based on the determination that the accommodation does not impose a substantial burden on their religious exercise, we need not reach the question of whether the accommodation is the least restrictive means of furthering a compelling governmental interest.
Notes
Hobby Lobby, 134 S.Ct. at 2782 (alterations in original) (footnotes omitted) (citations omitted).HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must [e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan and [p]rovide separate payments for any contraceptive services required to be covered without imposing any cost-sharing requirements ... on the eligible organization, the group health plan, or plan participants or beneficiaries.
We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.