Gilardi v. United States Department of Health & Human Services

GILARDI, al., Appellants A. et Francis OF DEPARTMENT STATES

UNITED SERVICES, AND

HEALTH HUMAN al., Appellees.

et

No. 13-5069. Appeals,

United States Court Circuit.

District Columbia 24, 2013.

Argued Sept.

Decided 2013. Nov. Manion, vice, argued

Francis hac pro J. appellants. him on the cause With Carly Colby May and F. briefs were M. Gammill. Colby Reproductive Rights,

Kimberlee was on the brief et al. in support Wood Gospel appellees. curiae Association of Res- for amici of Missions, al., support appel- et in of cue Charles E. Davidow and Marcia D. lants. Greenberger were on the brief for amici Deborah J. Dewart was on the brief for curiae American University Association of Life, Liberty, amicus curiae and Law Women, al. in support et of appellees. support appellants. in of Foundation Ayesha Khan, Gregory N. M. Lipper, Duncan Dwight G. was on brief for and Daniel Mach were on the brief for Theologians, amici curiae 28 Catholic et al. amici curiae Americans Separa- United for in support appellants. of State, tion of Church and et al. in support Joseph J. was on the brief for Lawrence appellees. of Eagle amicus curiae Forum & Education Michelle A. Kisloff was on the brief for Legal support appel- Defense Fund in of amici curiae Ovarian Cancer National Alli- lants. ance, support et al. in of appellees. Saunders, Lee Jr. was on the William amici curiae brief for American Association Martha Jane Perkins was on the brief Gynecolo- of Pro-Life Obstetricians and for amici curiae National Health Law Pro- gists, support appellants. et al. in of gram, et al. in support appellees. on Dorinda C. Bordlee was the brief for Pizer, Jennifer Taylor, C. Camilla B. and amici curiae Abortion Breast Cancer Coali- Ude, Thomas W. Jr. were the brief for tion, in support appellants. et al. Legal amicus curiae Lambda Defense and Francisco was on Noel J. the brief for Fund, support Education Inc. in appel- amicus curiae Archdiocese of in Cincinnati lees. support appellants. Bruce H. Schneider was on the brief for Dewine, General, Attorney Michael Of- Physicians Reproductive amici curiae Attorney

fice of the General of the State of Health, al. in support appellees. et Ohio, Pratt, and Jennifer L. Assistant At- General, torney were on the brief for ami- BROWN, Judge, Before: and Circuit cus curiae State of Ohio in support RANDOLPH, EDWARDS and Senior appellants. Judges. Circuit Michael F. was Smith on the brief for Legal curiae Life

amicus Defense Founda- Opinion by for the Court filed Circuit support tion in of appellants. BROWN, Judge with whom Senior Circuit Judge joins except to parts EDWARDS Klein, B. Attorney, Depart- Alisa VI, VII, VIII, and and with whom Senior Justice, argued ap- ment of the cause for Judge joins except Circuit RANDOLPH pellees. With her on the briefs were parts III and IV. F. Delery, Acting Stuart Assistant Attor- General, Machen, Jr., ney Ronald C. Opinion concurring part and Brinkmann, Attorney, Beth Deputy S. As- concurring judgment filed Senior General, Attorney sistant and Mark B. Judge Circuit RANDOLPH. Stern, Attorneys. Blatt, An- Katerberg, Opinion concurring part Lisa S. Robert J. Maeurdy, dissenting part

drew S. and Julianna S. Gonen filed Senior Circuit were on the for amici Judge brief curiae Center EDWARDS. methods, procedures, tive sterilization

BROWN, Judge. Circuit counseling for all patient education Seven-Sky our decision years after Two capacity,” as reproductive with women (D.C.Cir.2011), Holder, we F.3d provider. by a healthcare prescribed known behemoth revisit the are asked to Guidelines, Preventive Services Women’s time, This Act. Affordable Care as the Admin., http://www. Health Res. & Servs. however, confronted with we are not Group see authority. hrsa.gov/womensguidelines/; In- constitutional question of Is whether the Health Insurance stead, determine Health Plans and we must by the Act imposed mandate contraceptive Coverage of Preventive Relating to suers free exercise—a right the trammels Af the Patient Protection Services Under our constitu- at the core of right that lies Act, Fed.Reg. fordable Care by the Reli- protected liberties —as tional 2012) (Feb. 15, (citing the online 8725-26 Act. con- Restoration We gious Freedom Guidelines); see also C.F.R. HRSA clude it does. 2590.715-2713(a)(l)(iv); § C.F.R. 147.131(c).1 exceptions There are —some I grandfa permanent some ephemeral, —for brothers, Philip and Gilar- Francis Two and religious organizations, plans, thered Freshway Foods di, equal are owners 26 U.S.C. small businesses. companies Freshway Logistics and —both 4980H(c)(2)(A); 42 4980H(a); § § id. that have closely-held corporations 18011; § C.F.R. U.S.C. Subchapter under S to be taxed elected 147.130(a)(l)(iv)(A)-(B). §§ But The two com- Internal Revenue Code. any not fall into Freshway companies do employ about 400 em- collectively panies result, the Gi categories. As these a self-insured health operate and ployees adjust choices: were faced with two lardis third-party administrator plan through provide the man companies’ plans their stop-loss provider. and in contraven contraceptive dated services faith, the As adherents of Catholic beliefs, pay tion of their sterilization, oppose contraception, Gilardis per amounting to over million penalty $14 Accordingly, the two broth- abortion. year.2 as owners exercising powers their ers' — of an on the horns Finding themselves cover- company executives—excluded dilemma, their the Gilardis and impossible falling under and services age products court, alleg- companies filed suit in district categories. these mandate violated ing contraceptive the Affordable Care along But came Religious Freedom rights their under the group Act all Act. Part of the directs (RFRA), 42 Act U.S.C. Restoration issuers plans and health insurance health § the Free Exercise seq., et 2000bb cost-sharing require- provide, without Clause, Clause, and the Speech the Free ments, determined preventive care as plain- Act. The Administrative Procedure Ad- Health Resources and Services injunction, preliminary for a tiffs moved § 300gg-13(a)(4). ministration. U.S.C. request. court denied but district turn, guide- issued Administration Freshway companies, respect to the With “all requiring coverage for Food lines they not “exer- could contracep- the court determined Administration-approved Drug reference, dropped their 2. Gilardis could have we will refer to this The 1. For ease of coverage altogether, re- but healthcare contraceptive provision as “the mandate.” morally gard option unthinkable. See this ¶ 10; ¶ J.A. at 52 10. J.A. at 41 religion claim, eise” and thus no substantial RFRA bur- we must first ask whether den on exercise was demonstra- they may bring challenge at all. The Gilardis, ble under RFRA. As for the statute person allows “[a] whose any court found burden on the Gilardis’ exercise has been judi- burdened” to seek religious beliefs was indirect. relief, cial but leaves us guidance bereft of on who a “person” is. See 42 U.S.C. plaintiffs timely filed an interlocu- 2000bb-l(c) added). (emphasis tory appeal injunction and moved for an pending appeal. After having initially de- (as For at least one of our sister circuits motion, issued, nied their sponte, we sua Appellants), Act, well as the Dictionary giving an order them a temporary reprieve 1,§ 1 U.S.C. dispositively answers the from the mandate. question. Stores, Hobby Lobby See Inc. v. Sebelius, (10th 723 F.3d 1132 II Cir.2013) (en banc). Act, Under the Our standard of for a review denial of a “person” definition of extends to “corpora injunction preliminary upon rests what as- tions, companies, associations, firms, part pect of the district decision court’s we are nerships, societies, joint and stock compa examining. Insofar as our review con- words, nies” — in other it encompasses the cerns the district court’s consideration of corporeal and the incorporeal. 1 U.S.C. preliminary-injunction factors and the § 1. Freshway The companies largely de grant deny ultimate decision to or pend Dictionary on the Act’s elision of the injunction, we review for an abuse of dis- identity, differences in hoping applies it cretion. See In re Navy Chaplaincy, 697 their RFRA claim. (D.C.Cir.2012). F.3d 1178 But we But personhood the focus on is too nar legal review the underlying conclusions row; instead, we must construe the term decision de findings novo and review of “person” together with the phrase “exer Id.; fact for clear Chaplaincy error. of cise of religion.” See Myers, Rasul v. 512 Gospel Full England, Churches v. (D.C.Cir.2008) (“Because F.3d (D.C.Cir.2006). F.3d prohibits RFRA the Government from ruling “In preliminary injunction on a a ‘substantially burdening] person’s a exer key dispositive issue—often the one—is cise of religion’ simply instead of the exer whether the movant has shown a substan religion, 2000bb-1(a), § cise of 42 U.S.C. tial likelihood of success on the merits.” we must ‘person’ qualifying construe as Greater New Orleans Fair Hous. Action ” religion.’ ‘exercise of (emphasis origi Dev., Dep’t Ctr. v. U.S. Hous. & Urban nal)), vacated and remanded on other (D.C.Cir.2011). 639 F.3d To grounds by 555 U.S. likelihood, determine this we must answer (2008); see also 42 U.S.C. whether the contraceptive mandate of 45 2000bb-1(c) (“A § person whose 147.130(a)(1)(iv), applied C.F.R. to the exercise has been burdened violation of Appellants, violates free-exercise this section ... rights appropriate obtain protected by RFRA. par As the clear, against government.” relief eminently (emphasis ties have made we must added)). separately provides examine the claims And RFRA us with no Freshway companies helpful and their religion”; owners. definition of “exercise of all we can glean from the statute is that “

III ‘religious any exercise’ includes exercise begin Freshway companies. religion, We with the compelled by, whether addressing to, Before the merits of their or central system religious belief.” 2000cc-5(7)(A). others, 2000bb-2(4), House continued to tinker and §§ 42 U.S.C. body settled, toil; turn to the full must therefore once the dust had We wheth- to discern free-exercise caselaw our eventually constitutional proposed persons Freshway companies are er the Congress “pre- barring amendment under exercise capable religion vent[ing] the free exercise” of Rasul, 671; see 512 F.3d at statute. “infring[ing] rights of conscience.” id. Sebelius, F.3d Corp. also Autocam different at 766. But the Senate had Cir.2013); (6th Lobby, Hobby 625-26 end, ideas, and in the it was the free (Briscoe, C.J., concurring F.3d at 1167 religion standing alone—that exercise — part). dissenting part was sent the states ratification. See 1488; McConnell, supra, see also Louis IV Liberty Religious Fisher, Po- in America: simple: corpora do query (2002). Safeguards litical Exer enjoy of the Free tions the shelter history things This reveals about two right cise Clause? Or is the free-exercise purpose relevant to our in- Clause’s one, it is “purely personal” such First, quiry today. the constitutional or corporations and other “unavailable to the guarantee broader freedom “extended function’ ganizations because the ‘historic believers,” allowing of action all the limit particular guarantee has been as as inclusion of “conduct well belief.” protection to the of individuals”? First ed Bellotti, McConnell, Second, supra, Bank Bos. v. 435 U.S. 1490. the Nat’l of 765, 14, 1407, n. 778 98 S.Ct. 55 L.Ed.2d adopted encompassed formulation both in- White, (1978) (quoting 707 United v. States corpo- well judgment, dividual as as “the 698-701, 1248, 694, 64 88 U.S. S.Ct. 322 aspects religious rate or institutional of (1944)). the “na L.Ed. 1542 We turn to religion the belief.” Id. Because word ture, history, the Clause purpose” of believers,” community of “connotes a the for our answer. Id. the prohibition against impingement on great Framing, At the time of the religious free exercise must be understood raged precise the formulation of debate on of to cover the activities both individuals we as the Free Exercise what now know bodies. See id. McConnell, The Clause. See Michael W. groups And two been these have the Understanding Origins and Historical of Supreme beneficiaries of the Court’s free- Religion, Free 103 Harv. Exercise of sure, jurisprudence. exercise To be the (1990). 1409, The earliest 1480-85 L.Rev. right largely been understood as a of Representatives drafts the House personal incorporation, one. Before the conscience, protection focused of right Court described the free-exercise religion.” rather than the “exercise of right an individual one—“the indefeasible 1482; Congress 1 id. see also Annals of worship according God dictates of (1789) (noting 729 a later amendment to Missouri, Cummings conscience.” v. 71 “no change the to read: prototype Clause’s 277, 277, 304, L.Ed. 4 Wall. 18 356 law, by shall nor religion be established (1866). nothing did Incorporation alter of equal rights shall conscience be sentiment; shortly after Cantwell v. on, went infringed”). And as debates Connecticut, 296, 900, 310 U.S. 60 S.Ct. 84 rights of strong concerns arose that (1940), 1213 L.Ed. Court reaffirmed religious sects would not be “well secured personal right part nature of 1 Annals under ... Constitution.” (remarks Carroll, spirit “the mind and of man.” See Jones v. Congress of Daniel 15, 1789). 584, 594, Opelika, Aug. City To address concerns 316 U.S. S.Ct. these 1231, (1942), L.Ed. 1691 overruled on Church Aye, the Lukumi Babalu Inc. v. 103, grounds by Hialeah, 319 U.S. 63 S.Ct. City other 508 U.S. 890, (1943); L.Ed. 1290 see also Sch. 2217, (1993). 124 L.Ed.2d 472 It has Abington Twp. Schempp, Dist. even entertained by religious claims 1560, 203, 223, 83 S.Ct. 10 L.Ed.2d educational institutions. See Bob Jones (1963) (“[The purpose of the Free Ex States, 574, Univ. v. United 461 U.S. 579- religious liberty ercise is to secure Clause] (1983). 103 S.Ct. 76 L.Ed.2d 157 by any inva prohibiting the individual Beyond involving these cases authority.” civil (emphasis sions thereof organizations, however, we glean nothing added)). that understanding And still re from the jurisprudence sug Court’s sonates with the modern Court. See Zel gests other entities raise a free-exer Simmons-Harris, man v. challenge. cise But that the Court has 679 n. seriously never considered such a claim (2002) (Thomas, (“In J., concurring) partic a secular corporation or other organiza ular, rights these inhere in the Free Exer entity say tional is not to it never will. Clause, cise which unlike the Establish nonce, only For the one aberrational case protects ment Clause individual liberties of comes to mind. In Gallagher v. Crown religious worship.”). Massachusetts, Super Kosher Market of say That is not to or Court views Inc., 6 L.Ed.2d ganizations as constitutional outliers —in a corporation operated by deed, jurisprudence its the foun reflects members of the Orthodox Jewish faith principle dational bodies— challenged the constitutionality of Massa representing a communion of faith and a Sunday closing chusetts’ laws. at See id. community of believers—are entitled to 618, 81 S.Ct. 1122. The summarily Court the shield Free Exercise Clause. disposed of corporation’s free-exercise The Court has heard free-exercise chal claim, tersely noting that v. Braunfeld lenges religious entities and 599, Brown, 1144, 366 U.S. 81 S.Ct. 6 organizations. Jimmy Swaggart See Min (1961), L.Ed.2d 563 obviated the need for Cal., Equalization v. istries Bd. 493 of of Kosher, further discussion. See Crown 378, 381, 688, U.S. 110 S.Ct. 107 L.Ed.2d 631, Technically 366 U.S. at 81 S.Ct. 1122. (1990); Corp. 796 Presiding Bishop of speaking, Court did rule on the merits the Church Jesus Latter- Christ of of of of the case. But it remained dubitante Amos, 327, 330, day Saints v. 483 U.S. 107 standing perhaps novelty about of a — 2862, (1987); Tony S.Ct. 97 L.Ed.2d 273 & corporation bringing secular a free-exer Labor, Alamo Sec’y Susan Found. v. of challenge cise was novel. too See id. 290, 292, 1953, 471 U.S. 105 S.Ct. 85 (“Since rejects the decision in ] [.Braunfeld (1985); v. St. Nich Kedroff presented by appel the contentions these olas Cathedral Russian Orthodox of merits, lees on the we need not decide Am., 94, 107-08, N. Church in 344 U.S. appellees standing whether have to raise (1952). 143, S.Ct. 97 L.Ed. 120 It has questions.”); Hobby Lobby, these grievances listened to the of cf. (Hartz, J., concurring). F.3d at 1150 congregations. sects and member See Meanwhile, right we need not base a of Evangelical Hosanna-Tabor Lutheran — free nonreligious organizations exercise for EEOC, -, Church & Sch. v. caselaw, especially on so thin a reed of as 694, 699, (2012); 132 S.Ct. 181 L.Ed.2d 650 Supreme both we and the Court have ex Espirita Gonzales v. O Centro Beneficente 418, 425, pressed strong proposi doubts about that Vegetal, Uniao do 546 U.S. 1211, (2006); See, McRae, e.g., tion. Harris v. 448 U.S. 2671, worship. corpora- 65 L.Ed.2d 784 churches As for secular 100 S.Ct. tions, the Court all but silent. (1980) has been chal that a free-exercise (explaining requires indi ordinarily lenge is “one progenitor of Cit Consider Bellotti —the Found. Holy Land participation”); vidual the Bellotti Court izens United. When Ashcroft, v. 333 F.3d & Dev. does not lose “political speech declared Relief (D.C.Cir.2003) “the dubious (noting ‘simply Amendment be protection First corporation that a proposition charitable Citi corporation,’” cause its source United, religion can exercise 130 S.Ct. 876 not otherwise defined zens Amendment”). Bellotti, 98 S.Ct. (quoting the First protected 1407), many it in which the reviewed cases FEC, 558 U.S. Citing Citizens United v. invalidated a law Court state because L.Ed.2d protected by corpo “infringe[d speech on] corpo- Freshway companies argue that Bellotti, at 778 n. rate bodies.” enti- religious or otherwise —are rations — words, 1407. In Bellotti other full First Amendment array tled to the body giv of caselaw crystallized robust to free ex- including right protections, corpo ing right rise to the constitutional only proponents They are ercise. speech, political rate which the Citizens Lobby, 723 position. Hobby of this rely Court could on as a firm foun United (“Because (majority opinion) F.3d at 1135 dation. express them- Hobby Lobby Mardel juris corpus suggest No such exists to the First purposes, selves for right corpora- free-exercise for secular United, logic Amendment of Citizens Thus, “nature, history, we tions. read the Supreme recognized where the purpose” Free Exercise Clause for-profit cor- right a First Amendment militating against discernment of express politi- porations themselves right. corporate When such it comes (citation purposes, applies cal as well.” entities, only religious organizations omitted)); Conestoga Spe- also Wood see protections accorded the of the Clause. Dep’t Corp. Sec’y the U.S. cialties to the give And we decline credence Servs., Health & Human 724 F.3d for-profit/non-profit notion that the distinc- (cit- (3d Cir.2013) (Jordan, J., dissenting) that, too, dispositive, tion is is absent United, 342, at ing Citizens Fortunately, history. from the Clause’s 876). to this appeal There an S.Ct. is opine not a “reli- we need here on what all, reasoning; simple after the free-exer- is, gious organization” Freshway free-speeeh rights cise and are enshrined companies they have do not meet conceded sepa- provision, the same constitutional that criterion. only by a rated semicolon. Freshway alternatively companies Appellants’ arith- Perhaps constitutional they assert can vindicate the free-exercise metic, Exer- plus the Free Citizens United if rights They of their reason that owners. free-exer- equals corporate cise Clause is company “a owned and controlled But we right, ultimately prevail. cise will few like-minded who share the individuals rep- mindful United must be that Citizens religious company same values and run the of Su- resents culmination of decades values,” company to those pursuant preme recognizing jurisprudence Ap- surrogate. serve as the owners’ Conestoga corporations speak. that all See Br. at 50. the- pellants’ pass-through This Wood, 724 it comes to F.3d 384. When ory corporate standing logically however, the religion, gov- the free exercise of structurally appealing light only game. EEOC v. people Court has indicated that ernment’s shell And Manufacturing & executive an Townley Engineering was adherent to the group’s (9th Cir.1988) Co., provides 26, 859 F.2d 610 creed. See id. at 303 n. illusory, support. if longstanding, supports 1953. How this standing Townley, the Ninth Circuit concluded— corporation a secular to vindicate its own- way legal much in the substanti- without rights ers’ free-exercise is unclear. corporation “merely ation—that was Townley’s misconception as through the instrument and which [the standing spread soeiational from one their be- expressed] owners] another, free-exercise case to creep even liefs.” Id. at 619. ing way contraceptive its into the current Admittedly, theological there is a certain Stormans, challenges. mandate See Inc. congruence Townley’s characterization. (9th 1109, v. Selecky, 586 F.3d Cir. says “faith The Bible without works is 2009); Sebelius, see Monaghan also v. James). (King dead.” James 2:26 As am- F.Supp.2d (E.D.Mich.2013); 800-02 out, only ici point employ- Catholic Sebelius, F.Supp.2d Geneva Coll. morally responsible manage- ers for the (W.D.Pa.2013). While we decline companies, of their “instructing ment Freshway companies’ invitation to ac encouraging someone else to commit a cept Townley’s ipse closely dixit that held act wrongful grave is itself moral corporations can vindicate rights wrong i.e., ‘scandal’—under doc- Catholic owners, — we understand impulse. Br. Theologians trine.” of Catholic at 3. protection The free exercise core bul —a Thus, reason, amici “the Mandate thrusts wark of freedom—should not be expunged employers a ‘perfect Catholic into storm’ of now, by a label. But for we have no basis complicity moral the forbidden actions.” concluding organization secular can 5; Theologians Br. of Catholic see also religion. exercise Br. of the Archdiocese Cincinnati at 16- V partic- 17 nn. 7. When even attenuated see, sin, ipation may e.g., be construed as a That leaves the Gilardis.3 Obvious Lee, States v. 261 n. United ly, they difficulty have no satisfying the inquiry threshold to which their enterpris is not for courts to decide that succumbed; are, assuredly, es most corporate veil severs the moral owner’s “persons” under RFRA. also Rasul v. responsibility. (D.C.Cir.2009) Myers, 563 F.3d (“RFRA (Brown, J., concurring) does not dogma justiciability. But does not dictate ‘person,’ define so we must look to the Though Townley’s theologi- conclusion is ordinary meaning. word’s There is little defensible, cally fides, its standing bona mystery ‘person’ that a is ‘an individual only by supported a reference to a footnote being distinguished human ... an as Tony & Susan Alamo Foundation v. ” thing.’ (quoting animal or a Labor, 290, Secretary Webster’s of Dictionary 1953, 1606 are more 85 New International (1981))). dispute And there is no that the dubious. The Alamo Foundation Court mandate, Gilardis, as directed to the is a theory relied on a of associational words, of standing; palpable infringement in other and discernible organization could free exercise. All that stands between the raise free-exercise defense on be- half hope of one of its executives because the Gilardis and the of vindication is the Edwards, J., agree Judge Op. 3. We with Edwards that the Gi- of at 1227-28. standing indisputable. lardis’ Article III is 1216 a substantial bur- “allege! to ] shareholder- the Gilardis of the barrier

uncertain4 Kaem- religious exercise.” [their] inchoate concern den on and an standing rule 669, 677 553 F.3d “jurisdiction- merling Lappin, v. standing prudential about —a (D.C.Cir.2008). Religious exercise or con- be waived which cannot al issue of reli- broadly “any exercise Battery defined in this circuit. Ass’n ceded” of EPA, 667, compelled by, or cen- whether or not gion, 716 F.3d Recyclers, Inc. v. to, religious belief.” (D.C.Cir.2013). system tral of 2000cc-5(7)(A); § see also id. U.S.C. gives us shareholder-standing rule A “substantial burden” is 2000bb-2. that the Gi- we are satisfied pause; little an pressure on adherent “substantial way that is “injured in a have been lardis to violate his be- modify his behavior and injury an to the and distinct from separate at 678 Kaemmerling, 553 F.3d liefs.” Beam, 47 Crosby v. corporation.” See Bd. Ind. (quoting Thomas v. Review (1989); 105, 217, 219 548 N.E.2d Ohio St.3d Div., 707, 718, 101 Emp’t Sec. Co., Texor Petroleum also v. see Rawoof (1981)). 1425, S.Ct. 67 L.Ed.2d (7th Cir.2008) (employ- 521 F.3d derivative action rule ing the state-law of ex- begin peculiar step We with in a standing federal address shareholder This case is plaining what is not at issue. case). companies If have no question sincerity of the Gilardis’ not about nonreligious cor- claim to enforce—and beliefs, it concern the nor does engage cannot porations, on con- precepts theology behind Catholic con- are left with the obvious exercise—we unchallenged, The former is traception. Gilardis, right belongs to the clusion: unchallengeable. latter is See id. while the independently any right existing (“Particularly in this S.Ct. Thus, Freshway companies. the Gilardis’ area, judicial it is not within the sensitive “sepa- injury arises therefrom —is inquire judicial competence —which function and distinct,” providing us with an rate and or his fellow worker petitioner whether the shareholder-standing exception to the correctly perceived the commands more rule.5 not arbi- their common faith. Courts are scriptural interpretation.”); see ters of

VI Ballard, also United States (1944) 88 L.Ed. 1148 now reach the heart We (“Men they cannot requires may believe what RFRA claim. The Act Gilardis’ one; assume, flexibility ing contrary, deciding, Congress to the some 4. We without prudential- abrogate corpora- did not intend to been shown when it comes close enacting See, standing requirement RFRA. We Freshway companies. tions such as Judge wheth- share Edwards’ concerns about e.g., Kay, App.3d Yackel v. 95 Ohio principles apply prudential-standing er Moreover, (1994). N.E.2d 1109-10 challenges and whether the sharehold- RFRA underlying principles the share- none of prudential- er-standing part rule is by allowing holder-standing rule is offended Edwards, J., Op. standing equation. See proceed is no dan- the Gilardis' suit to —there imprudent to de- 1229-31. But it would be lawsuits, multiple ger of and no creditor or questions the cide these without benefit full compromised as shareholder interests will be issue, briefing especially on this as Gilar- challenge. 12B W. a result of their RFRA See easily surmount the shareholder- dis can Corporations Cyclopedia of the Law of Fletcher standing hurdle. (2006). recognize that share- 5911.50 We large public corporations will be holders con- 5. Our conclusion is buttressed other likely First, subject constraints and will to different not Ohio caselaw does siderations. insuperable. unyield- find the burden threshold the derivative-action rule as an treat may put proof property,” not be to the “the most sacred of all prove. They James beliefs.”). Madison, or religious Property, of their doctrines Mar. Gazette, Nat’l uncontroverted is the nature of Equally 29, 1792, 174, reprinted at in James Madi- religious they oper- exercise: the Gilardis’ My Country” 83-84 son’s “Advice in accor- corporate enterprises ate their (David ed., 1997), B. Mattern placed their dance with the tenets of Catholic freedom prior of conscience to and Lobby, F.3d at 1189 Hobby faith. See all superior rights. other natural Reli- (Matheson, J., concurring part and dis- wrote, gion, duty he is “the which we owe senting part). being to our Creator ... under the di- only, rection of reason and conviction charac only dispute The touches compulsion,” The burden is of violence or terization of the burden. Pa- Madison attenuated, govern (1962), too pers too remote and “precedent” to “the claims says, only as it arises when an em ment Society,” Civil Madison, James Memorial purchases contraceptive or uses ployee Against Religious and Remonstrance As- contraceptive disagree services. We with (1785); see also United States sessments government’s premise. foundational Macintosh, 605, 633-34, 283 U.S. 51 S.Ct. The burden on exercise does not (1931) C.J., 75 L.Ed. (Hughes, point contraceptive pur occur at the (“[I]n conscience, dissenting) the forum of chase; instead, company’s it occurs when a duty power to a moral higher than the goods fill the basket of and ser owners always state has been maintained.... The plan. vices that constitute a healthcare religion essence of is belief a relation to words, other the Gilardis are burdened involving superior God duties to those aris- they pressured to choose be when relation.”). ing any from human violating beliefs in tween From thence sprang idea that the managing plan paying their selected or right necessarily prohibits to free exercise Thomas, penalties. onerous government “compelling] a man 717-18, 1425; 101 S.Ct. Wisconsin v. money to furnish contributions of for the Yoder, propagation opinions which he disbe (1972) (“The impact Virginia lieves.” Jefferson, Thomas The compulsory-attendance law on respon Establishing Religious Act Freedom practice religion of the Amish dents’ is not (1786). prohibition plainly And that severe, only inescapable, but for the Wis throughout years manifested itself them, un affirmatively compels consin law integral component an of the free-exercise sanction, perform der threat of criminal Brennan, writing for guarantee. Justice undeniably acts at odds with fundamental Verner, the Court Sherbert v. beliefs.”); their religious tenets of Kaem L.Ed.2d merling, 553 F.3d at 678. put it well: “Government neither clearly The Framers of the Constitution belief, repugnant compel affirmation of insight philosophical embraced the penalize against nor indi discriminate government agency coercion moral they viduals because hold views impertinent, odious. Penalties are accord- abhorrent to the authorities.” Id. Locke, ing compel if are used to omitted). (citations 83 S.Ct. 1790 reason, quit men “to own light of their contraceptive mandate demands oppose dictates of their own con- meaningfully that owners like the Gilardis sciences.” John A Letter Locke, Concern- 1792) ing ed., and endorse the inclusion of con- approve 13-14 Brook (J. Toleration (1689). traceptive coverage companies’ Madison described conscience in their rights. with constitutional See over whatever less true plans, employer-provided 11AP-934, Rankin, 11AP- may have. Such an en- Franks v. Nos. objections they (Ohio exclusively by regu- 2012 WL at *10 Ct. procured dorsement — 2012) “compelled] affirmation latory May (rejecting a a sharehold App. ukase—is That, See id. repugnant a belief.” behalf of process brought of claim on er’s due alone, cognizable burden standing is corporation). the becomes And the burden free exercise. the principles, of these consider Mindful com- government because substantial argu- government’s ramifications of the by giving the Gilardis compliance mands exercise is an indi- ment. It contends free abide They choice. can either Hobson’s right. If the had run their vidual Gilardis faith, pay tenets of the sacred they proprietorships, as sole businesses million, cripple and penalty of over $14 have a viable RFRA presumably would they spent have a lifetime build- companies government’s theory. claim under the Cf. complicit grave ing, or become 81 S.Ct. 1144 Braunfeld, 366 U.S. If that is not “substantial wrong. moral (describing merchants who chal- individual modify his on an adherent pressure Sunday closing law under the lenged a beliefs,” violate his we fail behavior and to Clause). govern- But the Free Exercise could be met. See to see how the standard ment, an incom- relying perhaps on what is Thomas, 1425. law, ar- plete understanding corporate of that no burden suggesting substantial gues ability lose the to make Gilardis Gilardis, government in lies with by taking advantage claim of state such a principles undergirding the bar vokes the corollary to incorporation law. And as a True, it gain corporate for the veil. is an expansive theory, government’s elementary corporate of law that principle corporation— party being regulated —the “incorporation’s purpose basic is to create claim, as it is cannot make a free-exercise legal entity, legal rights, with a distinct capable exercising not an individual of reli- privileges differ obligations, powers, and view, So, gion. government’s in the there ent from those of the natural individuals corporate analogue, and the individu- is no it, it, who own or whom it who created disappears al into the ether. right Promotions, Kushner employs.” Cedric perplexing is and interpretation This King, Ltd. v. troubling. perplexing It is because we do (2001). 2087, 150 part And as Congress important intended not believe fiction, forgo certain of that shareholders statutory rights to turn on the manner corporation. rights pertaining to operates which an individual his busi (7th Sebelius, F.3d Grote v. government’s logic nesses. The is also Cir.2013) (Rovner, J., dissenting). But we eventually quite troubling because it would simply stop cannot there. Shareholders reach First Amendment free-exercise corpora a sacrifice because the make such “exercise” “of language, cases. The same analogue some generally tion can exercise in the religion,” appears both Constitution forgone right. corporation As a Amend. I Compare and RFRA. U.S. Const. making executing con “capable respecting (“Congress shall make no law tracts, possessing owning real and religion, prohibiting an establishment name, personal property suing its own thereof....”), with 42 exercise sued,” being a shareholder cannot ex free 2000bb-1(a) (“Government § shall U.S.C. pect right to exercise the to take these religion person’s not burden a exercise capacity. personal actions his or her ____”). Thus, is cor government if the Cyclopedia See W. the Law Fletcher (2006). rect, only is not price incorporation Corporations This is no

1219 statutory free-exercise VII of RFRA’s the loss constitutional one as well. right, but the As the Gilardis have demonstrated the uncon- create a risk of an And that would burden, substantial nature of their we now in future cases. See stitutional condition scrutiny, “searching turn to strict exami Sindermann, 593, 597, v. 408 U.S. Perry nation” where the onus is borne exclusive (1972) 2694, 570 33 L.Ed.2d 92 S.Ct. ly by government. Fisher v. Univ. of — (“[T]his clear that even Court has made Tex., U.S. -, 2411, 2419, 133 S.Ct. ‘right’ no to a valuable though person (2013); see also 42 186 U.S.C. though and even governmental benefit 2000bb-1(b). government § “[U]nless may deny him the benefit for government governmental a compelling demonstrates reasons, there are some any number interest, and uses the least restrictive may government upon interest,” reasons which furthering means of rely. deny It not a benefit to Holy mandate must be set aside. See Land, (internal infringes on his on the basis that person quotation 333 F.3d at 166 omitted); 42 constitutionally protected interests marks see also U.S.C. added)). § scrutiny 2000bb. While “strict must not (emphasis fact,” in in theory, be strict but fatal nei upon parade A of horribles will descend theory ther should it be “strict but exclaims, us, if government Fisher, feeble fact.” 133 S.Ct. at 2421 for private could serve as a veto beliefs (internal omitted). quotation marks aside, Hyperbole contraceptive mandate. and not Congress, we note it was A courts, reli that allowed for an individual’s precisely It is difficult to divine what prevail conscience to over substan gious “compelling,” makes an interest but a few tially regulation. burdensome federal reliable metrics exist. The interest cannot Espirita v. Gonzales O Centro Beneficente “broadly formulated” —the test de be 418, Vegetal, do 546 U.S. 126 S.Ct. Uniao Centro, 546 particularity. mands See O 1211, the Su 163 L.Ed.2d Yoder, (citing at 126 S.Ct. response: preme provided apt an 1526). 213, 221, at The 406 U.S. S.Ct. argument echoes the Government’s of the interest is con “compelling” nature rejoinder through- of bureaucrats classic tingent (citing on its context. See id. history: exception out If I make an 306, 327, 123 Bollinger, v. 539 U.S. Grutter everybody, you, I’ll have to make one for (2003); Ada S.Ct. exceptions. operates no But RFRA so Constructors, Pena, rand Inc. v. 515 U.S. consideration, under the by mandating 2097, 132 L.Ed.2d 158 115 S.Ct. test, exceptions compelling interest (1995)). must be “of the And the interest general applicability.” “rule[s] order,” Yoder, highest 2000bb-l(a). § Congress deter- U.S.C. “appre it cannot leave meaning legislated that the test [of RFRA] mined supposedly vital inter damage ciable to [a] striking sensible “is workable test Lukumi, unprohibited,” est liberty and balances between (quoting Florida Star 113 S.Ct. competing governmental interests.” B.J.F., 524, 541-42, 2000bb(a)(5). (1989) J., (Scalia, 105 L.Ed.2d (alteration concurring in the concurring part Id. at judgment)).6 original). Wood, Conestoga damage” unprohibited. already spilled

6. Much ink has been on how (Jordan J., dissenting); “appreciable at 413-14 government's leave 724 F.3d interests 1220 tro, 431, 1211. cites several concerns 126 S.Ct. We government

The contraceptive that the government’s bolster its claim cannot be satisfied with the to (or compelling mandate serves a interest representation compelling as to the nature interests), sketchy recitation is but its simply interest because other courts of the highly Perhaps government abstract. the gener- have reached that conclusion the justiciability, it best to focus on thought Yoder, 221, ality of cases. See 406 U.S. at would be sufficient to hoping ipse its dixit 92 1526. S.Ct. all, scrutiny. After if no one survive strict government’s The of the nebulousness object, standing has the state avoids the interest, however, prevents us from en- Here, searching inquiry into its means. gaging type exacting scrutiny in the range the articulated concerns from “safe- exactly gov- warranted here. is the What guarding public “protecting the health” to trying ernment to ameliorate? Is it the compelling a woman’s interest in autono- integrity of “the health and insurance my” equality. But promoting gender Surely, that cannot be the an- markets”? government does little to demonstrate swer; comprehensive sweep of the Af- array a nexus this of issues and between fordable Care Act will remain intact with the mandate. or it a without the mandate. Or is need example, principle, For as a standalone provide greater contraceptive access to “safeguarding public health” seems too so, below, care? note the reasons If we broadly satisfy formulated compel underpinning that need are tenuous at ling test. It has interest been used to If best. we are to assess an whether

justify all government regula manner of exemption pose for the Gilardis would an Wade, tions in other contexts. See Roe v. “impediment governmental] objec- to [a 705, 410 93 35 L.Ed.2d tive[],” we must first be able to discern (1973) (abortion laws); Loxley v. Ches 236, objective 221, what that is. id. at Auth., 97-2539, apeake Hosp. No. reciting Simply S.Ct. 1526. Mead is (4th 1998) at *4 Dec. WL Cir. enough. (competence of personnel); medical Du government’s The invocation of a “wom- nagin City Oxford, F.2d compelling autonomy” an’s interest is (5th Cir.1983) (en banc) (liquor advertise wording telling. even less robust. The is rules). here, government ment And implies autonomy It is not the state’s in- sweep relies on the broad of that interest Nevertheless, terest to assert. the gov- more, Holder, citing once Mead v. ernment, Baird, quoting Eisenstadt v. (D.D.C.2011), F.Supp.2d an individu al-mandate case which a district court protects claims the mandate public found the health interest sufficient. ability woman’s to decide “whether to bear But the invocation of the interest in Mead beget or a child.” See id. at reflexive, empty, seems and talismanic. 1029. government say, cites Mead as if to difficulty in accepting govern- Our interest, compelling always “once a a com looking ment’s rationale at the stems interest.” It pelling recognize fails quote in “If entirety: Eisenstadt its “safeguarding public health” is such a right privacy anything, means it capacious requires formula that close individual, scrutiny right single, of the asserted harm. See O Cen- married or Hobby Lobby, 723 F.3d at 1143-44. We share here. concerns, repeat these but need not them particularly illumi- governmental context of abortion is unwarranted

to befree from fundamentally again, af- Time and nating regard. matter so in this intrusion into the decision bear person fecting government’s interest such cases added). Re- Id. (emphasis a child.” beget legitimate deemed and substantial. been means this observation of what gardless v. Parenthood Se. Pa. Ca- See Planned government the today,7 it is clear for us 846, 2791, 833, 112 S.Ct. sey, 505 U.S. 120 how such failed to demonstrate has (1992); see also Gonzales v. L.Ed.2d 674 as noninterfer- described right&wkey;whether Carhart, 1610, 550 U.S. extend to ence, autonomy privacy, or —can (2007). But it has never of a woman’s subsidization compelled the Casey, 505 compelling. See at been our search- Again, procreative practices. (Blackmun, J., concur- 112 S.Ct. 2791 the impossible unless ing is examination dissenting part) ring part and purposes with its government describes (“[W]hile interests ‘legitimate has State Mead, invoking simply As with precision. pro- pregnancy from the outset of the Eisenstadt enough. is not the of the woman and the tecting health govern- the unconvincing is Equally child,’ may become a life of the fetus that mandate averts the ment’s assertion enough. To legitimate interests are for both the consequences “negative health scrutiny, the burden of strict the overcome From developing the fetus.” woman and compelling.”). And we interests must be outset, is debatable we note the science the otherwise here. have no reason to believe govern- may actually undermine possibility we do not exclude While mother, potential ment’s cause. For the safeguarding the state’s interest notes, the World Health amicus one may be maternal or fetal health sometimes contra- certain oral Organization classifies such a conclu- compelling, we cannot draw by an in- carcinogens, marked ceptives as See O Cen- particular in this context. sion breast, cervical, and liver creased risk tro, 1211. at 546 U.S. Breast Cancer Preven- cancers. Br. of the Finally, “gender equality” note we hand, Institute, the other tion at 8-9. On misnomer; govern- perhaps the bit of a ap- have been contraceptives at issue for the veneer of labeled it as such ment Drug Administra- Food and proved attached to the importance constitutional tion, touting their by research supported described, in- accurately term. More J., Edwards, at 1240. benefits. See ofOp. parity which, resource terest at issue is pause because the tug-of-war gives us This — context, the Su- analogous in the abortion acknowledged nor has neither government rejected as both a funda- preme contradictory claims. these resolved equal-protection as an right mental government the benefit giving Even Harris, 317-18, 100 issue. See doubt, underpin- concerns the health liberty protected (“Although S.Ct. variously de- mandate can be ning the protec- affords by the Due Process Clause substantial, perhaps legitimate, scribed as in- government unwarranted against tion not rank as important, but it does even in the of choice terference with freedom compelling, that makes all the differ- decisions, personal of certain context v. District Colum- Hutchins ence. Cf. to such (en an entitlement (D.C.Cir.1999) does not confer bia, 188 F.3d realize all banc). necessary to funds as be concerning analogous Caselaw (2006) (describing the transformation Raymond Randolph, Roe v. 7. A. Before Roe). Opin- Friendly’s Judge Abortion right Wade: ion, in Griswold and described Draft Pol’y 1035, & Pub. 29 Harv. J.L. freedom.”); goals of that Maher substantive of the mandate while advantages Roe, sufficiently being accommodative reli- (1977) (“But 61; this Court has Br. gious Appellants’ exercise. See never that financial need alone identi- Wood, held Conestoga also 724 F.3d at 414- see purposes equal suspect fies a class for (Jordan, J., dissenting). govern- The protection analysis.”). could defeat these alternatives ment “present would an adminis- proving cites Roberts v. government problem magnitude, trative of such or ... 609, 104 S.Ct. Jaycees, 468 U.S. great a com- exempted afford the class so “gen- to advance its L.Ed.2d There, advantage, require- that such a equality” petitive der interest. the Court equal “[assuring observed that women ... ac- ment would the entire statu- render[ ] goods, privileges, Sherbert, cess to such and advan- tory scheme unworkable.” clearly in- tages compelling furthers state 408-09, at 1790. But it has U.S. terests.” Id. at 104 S.Ct. 3244. But case; know, made no such for all we a context, put that is into when observation religious exemption broader would have so support government’s it case. fails impact group little on so small a of em- Jaycees organization an concerned argument that ployees cannot be made. entirely out had shut women from Moreover, self-defeating. the mandate is superior membership; it did not class government regulation When a “fail[s] any disparate membership involve fees or prohibit nonreligious conduct that endan- resource-parity issue that sustain the gers interests a similar or [its asserted] government’s argument. See id. at greater degree” regulated than the con- 628, 104 quite S.Ct. 3244. This case is duct, by design.8 it is underinclusive See access, Beyond question different. Lukumi, 113 S.Ct. 2217. it government sug- is difficult for the suggest And underinclusiveness can gest the interests women are monolith- inability an narrow-tailoring to meet the ic, Jaycees, and unlike govern- requirement, questions raises serious proposed clearly impinges ment’s solution efficacy about the and asserted interests prerogatives. on other core case, regulation. served In this businesses, grandfa-

B small businesses with (albeit an plans temporarily), thered assume, however, govern- Let us array employers exempt of other ei- compelling ment has a interest. Even from ther the mandate itself or from the then, we cannot see how the mandate is entire scheme of the Affordable Care Act. “the least restrictive furthering means of Therefore, unquestionably the mandate is ... interest.” See U.S.C. Hobby Lobby, underinclusive. See § 2000bb-l. It suffers from two flaws 1143; Wood, Conestoga F.3d at see also First, that cannot be overcome. there are (“It (Jordan, J., presented by dissenting) viable F.3d at 414 the Gi- alternatives — legitimately lardis and others —that would achieve the cannot be said to vindicate added)). generally (emphasis recognize spects.” 8. Underinclusiveness a relevant We narrow-tailoring inquiry. overlap consideration of the the considerable between narrow-tai- Lukumi, loring "apprecia- 508 U.S. at 113 S.Ct. 2217 under-inclusiveness and the ("First, governmental damage” component compelling- even were the interests ble of the Nevertheless, compelling, prong. the ordinances are not drawn in interest we need not accomplish narrow terms to those interests. reconcile the distinctions between the two— discussed, formulations, government weAs have all four ordinances are under both falls supra overbroad or underinclusive in substantial re- short. See at 1219 n. 6. govern Lee was a rare case which the interest because governmental compelling strict-scrutiny challenge off a ment fended already exempted government by proving exemptions “present would an em- plans, grandfathered its reach problem magnitude administrative of such what employees, and with under 50 ployers requirement would have ... that such thus employers’, ‘religious it defines statutory the entire scheme un rendered upon millions millions voluntarily allowing Sherbert, 408-09, workable.” 374 U.S. at mil- some estimates people by — Lee, 1790; see plans covered insurance lion—to be (“Moreover, comprehensive S.Ct. 1051 vital satisfy supposedly that do not security system providing national social public with free providing interest voluntary participation would be almost (internal citations omit- contraceptives.” difficult, if not a contradiction terms and ted)). administer.”). Proving the impossible, to if would be remiss A word on Lee. We requested religious incompatibility by the Court: we omitted this observation that the exemption necessary prove was sect enter particular followers of a When employed the least-re government had matter of activity as a into commercial Lee, at 259- strictive means. See choice, they accept on their the limits (“Unlike 60, the situation 102 S.Ct. 1051 a matter of conscience own conduct as [Yoder], presented in it would be difficult on superimposed faith are not to be comprehensive to accommodate the social binding statutory schemes the which myriad exceptions security system with activity. in that on others variety a wide flowing from beliefs.”). carefully Congress had deter 261, gov- 102 1051. The 455 S.Ct. breaking point of Social Securi mined the quote this to fore- ernment understands ty any uncontemplated exemptions could by employers close free-exercise claims — statutory scheme unworkable. render the context again, But once

like the Gilardis. 258, 102 1051. See id. at S.Ct. in our narrow- We mention Lee matters. because that is where tailoring discussion contrast, government has not In the state- belongs.9 The Court made statutory un- even proven nay, asserted — — evaluating quoted ment above while workability “private Its veto” con- here. liberty “limitation on whether the point, on but without cern is somewhat an over- accomplish substantiation, ... essential to [was] is nowhere substance or 257, Id. at tailoring interest.” riding governmental If we found narrow enough. near dixit, engaging inqui- in that strict- ipse 102 S.Ct. 1051. mere satisfied in- examined “whether accom- become feeble ry, scrutiny inquiry the Court would Lee, unduly govern- where the modating [would] the Amish belief deed. And unlike govern- successfully fulfillment of the asserted the Social Secu- interfere with ment every contribution assuring rity system required contribution to mental interest [of 259, exempt, not otherwise Congress Id. at did Security scheme].” the Social suggest preventive- nothing there is 102 S.Ct. 1051. past, religious exercise in the on about wheth- 9. Lee also reinforces our doubts intrusions Sherbert, S.Ct. 1790. 374 U.S. at are suf- see government’s asserted interests er the interests functioning many doubts about compelling. proper Given our ficiently The skeptical whether posited, we are about system perceived an interest the tax was gravest order,” designed "the to address mandate is high see 455 U.S. at of "a abuses, endangering paramount interest.” safety, "public akin to interests of Sherbert, 1790. justified government peace, or order” that Publishers, Sebelius, if F.Supp.2d become unworkable Inc. v. care statute would objecting religious grounds (D.D.C.2012); on employers Legatus v. see Se comprehen- (E.D.Mich. of a opt part belius, could out of one F.Supp.2d The coverage requirement. sive Gilardis’ Stores, 2012); Hobby Lobby Inc. v. Se cf. array an employees will still receive belius, (10th Cir.2013) (en 723 F.3d visits, gesta- services such as well-woman banc) (majority opinion) (addressing only testing, screenings, tional-diabetes HPV individual, by corporate, claims but not counseling sexually-transmitted infec- plaintiffs). approach The same be tions, breastfeeding, and coun- support for deciding rights used without seling interpersonal and domestic vio- Freshway Corporations gov because lence. See Women’s Preventive Services ernment could enforce the mandate Guidelines, Health Admin., Res. & Servs. against only corporations by compel http://www.hrsa.gov/womensguidelines/. ling the to act. “it Gilardis Since is not provision of these services—even more, necessary necessary to decide it is contraceptive without mandate-— not to decide more.” PDK Labs. Inc. large statutory fulfills the command Admin., Drug 362 F.3d Enforcement provide gender-specific pre- for insurers to (D.C.Cir.2004) (Roberts, J., con least, very care. At the the statu- ventive curring part concurring judg tory go pieces. scheme will ment). We particularly should be hesitant VIII pass unnecessarily complex such is the district court We conclude erred If for-profit corporations sue. secular can denying preliminary injunction for the never religion, profitable exercise what of grounds Gilardis on the that their case was of organized religions? activities See Her merits; unlikely to succeed on the there- Comm’r, 680, 709, nandez v. fore, we reverse the district court’s denial (O’Con (1989) S.Ct. preliminary injunction of a for the individ- nor, J., dissenting). only religious If for- ual owners. Because the court premised profit organizations have free-exercise entirely law, question its decision on a right, how distinguish does one between we must remand for consideration of the religious non-religious organizations? and preliminary-injunction other factors. See Stores, Hobby Lobby See 723 F.3d at 1136- Churches, Chaplaincy Gospel Full 12; (Briscoe, C.J., 37 & n. id. at 1170-75 F.3d 304. We affirm the district court’s concurring in part dissenting part). in injunction preliminary denial of a with re- Why limit right the free-exercise to reli spect Freshway companies. to the gious organizations many when business So ordered. corporations religious dogma? adhere to Rienzi, RANDOLPH, See Mark L. Judge, Senior Circuit God and the Profits: concurring part concurring in in Religious Liberty Money Is There for judgment: Makers?, (manu 21 Geo. Mason L.Rev. 11-24) 2013). script (forthcoming fall If join parts

I do not Judge III and IV of non-religious organizations do not have opinion I Brown’s because do not believe rights, why non-religious free-exercise do potentially we need to reach the far-reach- (atheists, persons natural example) ing corporate question. free-exercise Oth- Watkins, possess them? Torcaso v. er in contraceptive-mandate courts cases n. 495-96 & have to address the unresolved “decline[d] (1961). question corporate L.Ed.2d If a for-profit corporations of whether free- can religion.” Tyndale any form, exercise House in right recognized, exercise shareholder under I.R.C. secondary one challenging equally there are 1361(c)(l)(A)(ii)),they of a into § ] the beliefs would “take[ How should questions. Can be determined? corporation rata of the cor- “pro account” their share religious? corporations be traded publicly determining ... income” in poration’s religions of their so, they take on the If do tax income liabilities. I.R.C. If course? as a matter of shareholders 1366(a)(1). words, § In other as a direct sold, it retain corporation is does operation of the mandate’s the Gi- result identity? questions, These its income in lardis themselves will have less themselves, would confront challenging year. This underscores the each taxable across the permutations us different modify “pressure [the Gilardis] organizational entity forms and diverse be- behavior and to violate [their] [their] land- of the American business structures v. Review Bd. Ind. liefs.” Thomas scape. Div., Emp’t Sec. emphasize separately I also write (1981). 67 L.Ed.2d Freshway Corporations’ of the importance EDWARDS, Judge, Senior Circuit subchapter S to be taxed under election I.R.C. concurring part dissenting part: Code. Internal Revenue result, Freshway §§ As a 1361-1379. Table of Contents pay corporate income

Corporations do 1363(a). Instead, the § taxes. I.R.C. See Standing I. Freshway Corporations of the income Standing Companies A. The Have No rata, share- through, pro to their passes to Pursue a Cause of Action Under holders, I.R.C. the Gilardis. RFRA 1366(a)(1). disregards the Subchapter S Companies B. The Owners of corpo- purposes form for corporate Standing in This Case to Pur- Have why ask Con- rate income tax. We must RFRA a Cause of Action Under sue corpo- disregarded the gress would have subchapter corporations S rate form Jurisprudence II. Free Exercise prevent imposed wanted it to but then Principles: The Limited A. First asserting free-exercise their owners of the Free Exercise Clause Reach good no under RFRA. There is rights B. The Evolution Substantial answer, none. we have received or least Burden/Compelling Governmental incongruous emphasize It would be Twenty- During Test Interest RFRA rigid veil in form for corporate to Smith Years from Sherbert seven pur- tax disregarding it for purposes while RFRA in Congress’ Enactment of C. This poses subchapter under S. inference Restoration Reaction to Smith: compelling because both is particularly Burden/Compelling the Substantial and the “tax” that enforces subchapter S Interest Test Governmental part mandate are contraceptive § 4980D. Revenue Code. I.R.C. Internal Mandate Does Not Substantial- III. The subchap- provisions of pass-through Appellants’ Religious ly Burden If reason. matter for an additional ter S Contracep- Objections Use Freshway do not order the Gilardis Products tive mandate, comply with Corporations Compelling Interests Governmental IV. tax will be their individual returns then Justify the Mandate an S As shareholders of directly affected. they are treated (technically, Corporation Brown, Appellants I Francis and Phil v. 366 U.S. agree Braunfeld standing pursue (1961). a cause of

Gilardi have L.Ed.2d 563 Were Religious Freedom Resto- action under otherwise, “professed doctrines of (“RFRA”), ration Act U.S.C. superior belief to the law of the [would be] §§ agree I also with 2000bb-2000bb-4. land, permit every and in effect ... citizen corporate entities Judge Brown that to become a law unto himself. Govern Gilardis, solely that are owned only ment could such exist name under Freshway Logistics, Inc. and Fresh Un- Reynolds circumstances.” v. United (collec- limited, Inc., Freshway Foods d/b/a States, 25 L.Ed. tively “Freshway”), standing do not have (1878). in Lyng As the Court noted relief RFRA. to seek under Cemetery Northwest Indian Protective As

However, I strongly disagree with the sociation, majority’s holding on the merits. Under (1988): the Patient Protection and Affordable apply The First Amendment must to all (“Affordable Act”), Act of Care Care alike, give citizens and it can to none of Freshway 300gg-13(a)(4), U.S.C. them a veto public programs over required plan to include its health care prohibit do not the free exercise of reli- Drug Food and Administration ap- “[a]ll gion. not, The Constitution does and methods, proved contraceptive sterilization cannot, courts offer to reconcile the vari- procedures, patient education and competing ous on government, demands counseling reproductive for all women with many of them rooted sincere capacity.” Group Health Plans and belief, inevitably arise so diverse Relating Health Insurance Issuers to Cov- task, society as ours. That to the erage of Preventative Services Under the feasible, legis- extent that it is is for the Patient Protection and Affordable Care latures and other institutions. (Feb. Act, 77 Fed.Reg. 452, 108 Id. S.Ct. 1319. 2012); (providing hy- see id. at 8725 n. 1 perlink applicable to the Health Resources The Gilardis’ claim in this case finds no guidelines). Services Administration support in They required the law. are not The Gilardis contend that compliance with contraception, use endorse this directive—also known as “the Man- remain openly oppose contracep- free to date”—will force them to violate “their tion. The requires nothing Mandate more Catholic against beliefs” contra- Gilardis, than companies, that the not the ception. Appellants Br. of at 14. offer medical insurance that includes cov- erage contraceptive services for those sincerity

No one doubts the of the Gilar- against employees Supreme dis’ who want it. The contraception. beliefs claim, however, legal Their seriously is Court has applied never the Free Exercise wanting. complain The Gilardis that the Clause to find a substantial burden on a Mandate imposes a “substantial burden” plaintiffs religious exercise where the on their religion” “exercise of under plaintiff is not himself to required take or RFRA, 2000bb-l(a), 42 U.S.C. because forgo action that violates his be- companies required their are provide to liefs, merely required but is to take action health contracep- insurance that includes that might people enable other to do tive services. This is a specious claim. things that are plaintiffs at odds with the Therefore, religious beliefs. the Gilardis

It has been well understood since the substantially cannot claim to be founding legislative of our nation that re- burdened by strictions trump religious exercise. the Affordable Act—a Care neutral

1227 nature, history, purpose” “the and applicability regu- general of statute and no and welfare public against extending lates health right Clause counsel the religion. of way limits their exercise nonreligious corporate entities. See Bank v. 435 First Nat’l Boston indulge implausible sug- the If I were Bellotti of 1407, 765, 14, n. U.S. 778 98 S.Ct. 55 imposes Mandate a sub- gestion that the (1978); Sebelius, Appellants’ on exercise of stantial burden 707 v. 708 L.Ed.2d Grote majori- disagree I with the religion, (7th Cir.2013) would 850, (Rovner, J., F.3d 857 the ty’s conclusion that Government has (“General dissenting) corpora business is that the the failed to establish Mandate not, separate apart tions and the do from furthering a restrictive means of least systems their actions or belief of individual When the record in compelling interest. employees, religion.” owners exercise lens through case is viewed of this Stores, (quoting Hobby Lobby Inc. v. Se the Mandate precedent, well-established belius, 1278, 1291 F.Supp.2d 870 of easily requirements satisfies (W.D.Okla.2012))); Conestoga see also test. governmental interest compelling Specialties Corp. Sec’y Wood of Supreme clear in Court made As Servs., Dep’t Health & Human 724 F.3d of Lee, United States v. (3d Cir.2013) (“Citizens [v. United L.Ed.2d 127 deci- S.Ct. FEC, repeatedly cited been sion (2010),] grounded ... in the is questioned: never long history notion of that the Court has Congress the courts have been sen- rights free protecting corporations’ to the from the Free flowing sitive needs speech.... is similar histo [T]here [not] Clause, every person but can- Exercise ry providing protec of courts free exercise be the burdens not shielded all to corporations.”). tion exercising every aspect incident right practice When beliefs. point dispositive here that while particular sect enter into followers engage general corporations may business activity a matter commercial in expression related to their business choice, on accept the limits terests, independent their owners’ inter as a matter conscience own conduct ests, general corporations business “do superimposed are not to be on faith or take pray, worship, observe sacraments statutory binding schemes which are sepa religiously-motivated other actions activity. others in that and di apart rate and from the intention 1051 (emphasis Id. at add- Grote, rection their individual actors.” ed). Freshway get and the no Gilardis (Rovner, J., dissenting) at 857 F.3d merely this pass on rule because com- Hobby F.Supp.2d (quoting Lobby, solely owned panies Gilardis. 1291). is, Therefore, “[r]eligious exercise Lee and other like authorities show that nature, ‘purely, person its one of those spurious. Appellants’ claim on merits is [Bellotti, al’ matters referenced Standing I. is not 1407] n. which Companies Standing A. Have No general corpora The province of business to Pursue a Cause of Action Under it tion.” has Freshway Id. conceded RFRA religious organization purposes is not Clause; therefore, of the Free Exercise Although Supreme long the standing pursue the no companies have Exercise recognized protection Free religious organizations, a claim under RFRA. individuals and Companies (2000) B. The Owners Have S.Ct. 145 L.Ed.2d 610 (citing Standing in This Case to Pursue a Lujan v. Wildlife, 504 U.S. Defenders of Cause of Action Under RFRA 555, 560-61, 119 L.Ed.2d (1992)). easily The Gilardis satisfy Freshway, satisfy Unlike the Gilardis requirements. these requirements the of Article III and are not barred for standing want of from pursuing As the sole owners of companies, the the a cause of action under RFRA. Gilardis are inextricably tied to Freshway. They therefore suffer injury

The in fact be- argues Government cause operate cannot their businesses Plaintiffs cannot circumvent the distinc- according to their faith. Appellants Br. of tion between organizations and Furthermore, at 16-17. inju- the Gilardis companies by secular attempting to shift ry concrete, the is imminent and focus of the RFRA it is inquiry from caused Freshway Gilardis, by Mandate, Foods to the who the and it will be redressed corporations’ the controlling by judicial sharehold- a favorable decision. There- obligations ers.... fore, The[ ] the Afford- [of the Gilardis have Article III standing able Care lie with corporations Act] pursue a cause of action under RFRA. themselves. The Gilardis cannot even It is true that plaintiffs when a asserted establish standing to challenge the con- injury is governmental based on regulation traceptive-coverage requirement, much of a party, proof third standing may be less demonstrate that requirement See, problematic. e.g., Allen v. Wright, regarded be as a substantial bur- 737, 758-59, 468 U.S. den on personal exercise reli- (1984); Simon v. E. Ky. Wel gion. Rights Org., 26, 41-46, fare Br. Appellees for the at 24 (emphasis add- (1976); Nat’l ed). appears It that the Government has Wrestling Coaches Ass’n Dep’t of Educ., conflated the requirements of Article III (D.C.Cir.2004). 366 F.3d 938-39 This standing with the merits of the Gilardis’ is because necessary elements of cau Indeed, claim under RFRA. apart from the sation and redressability in such a case foregoing passing reference to “standing,” rest on independent choices of the the Government never bothers to address regulated party. such, third As “it be requirements Rather, of Article III. it comes the burden of plaintiff to adduce rests principally on its claim that an action facts showing that those choices have been injuries to redress to a corporation cannot or will be made in such manner as to be by maintained a stockholder in his own produce permit causation and redressabili name. Id. at 25. ty injury.” Wildlife, 504 Defenders of satisfy To Article Ill’s standing require U.S. at 112 S.Ct. 2130. There is no ments, plaintiff (1) must show that he or third-party such standing problem with re she has an “injury suffered in fact” that is spect to the Gilardis’ claim. (a) (b) particularized concrete and ac This case presents a situation in which a imminent, tual or conjectural or hypo for-profit (2) corporation fully is thetical; owned two injury fairly is traceable to related shareholders. Freshway and the challenged defendant; action of the (3) separate legal shareholder-owners are likely, en- opposed to merely tities, speculative, but are otherwise injury inextricably will con- be re dressed nected. favorable decision. corpora- Friends Gilardis control the Earth, Inc. v. Laidlaw tions Envtl. Servs. and feel a concomitant responsibility (TOC), Inc., 167, 180-81, 120 to manage the companies’ business activi- a under standing pursue with their Catholic faith. to claim RFRA. ties consistent Or, put connection between the Government to way, This it another the Government Freshway’s conduct Mandate and leaves that seems contend the cited principle to is regarding requirements doubt the of little the prudential foundation rule that redressability causation and under Article right pursue limits a claimant’s a cause upheld standing III. We have cases action of under RFRA even when the of involving regulation Government third requirements claimant has satisfied the of the between the parties where connection Article cites III. The Government no Su- third-party and the Government action preme authority support this Court clear than it is this conduct was less I can proposition, and find none. See, Dep’t e.g., case. Tozzi v. U.S. of First, contrary to the Government’s ar- Servs., F.3d Health & Human relating to general the rule share- gument, (D.C.Cir.2001) (holding that 309-10 holder suits is not As the inviolate. Su- of to the Government’s addition dioxin list preme noted in Franchise Tax known carcinogens municipali- caused Board v. Alcan Aluminium California or end companies ties reduce Limited, “an exception there is to this rule produced by plain- plastic use PVC direct, allowing a shareholder with a per- tiff-manufacturer, and a decision that set- sonal interest in a action bring cause of likely aside action ting the Government’s rights suit if the corporation’s even are manufacturer). give redress to the would also implicated.” 493 U.S. is question There no here that Man- (1990). S.Ct. The L.Ed.2d compels Freshway action date to take that Gilardis’ claim under RFRA asserts challenge under RFRA. the Gilardis right cause of action their own for an Therefore, redressability causation and are alleged religion. of their exercise denial satisfied. This does not offend the shareholder Finally, provides because RFRA that standing rule. “[standing to assert claim or defense Second, although the Government does governed under shall be [the Act] assert explicitly that the shareholder standing article III general rules of under prudential is a Constitution,” standing rule re- standing U.S.C. 2000bb- 1(c), quirement, the Sixth reached this clearly have met the Circuit only Gilardis Corporation v. Se- requirements standing that set conclusion Autocam belius, (6th Cir.2013). in RFRA. forth 730 F.3d 618 provides RFRA recognizing While that ignores require- The Government only requirements III that Article and, instead, III standing ments Article standing, must met for the Sixth Cir- be princi- its argument rests “the bedrock prudential cuit concluded that nonetheless ple corporation legal is ‘a distinct requirements must satisfied. The also be entity, rights, obligations, pow- with legal out points Autocam decision first ers, privileges different from those of “ ‘Congress legislates against back- it, natural individuals who created who ” Supreme ground pruden- Court’s] [the it, or it Br. for employs.’ own whom doctrine, applies un- standing tial which (citing Appellees at 26 Cedric Kushner ” Id. at 623 expressly negated.’ less Promotions, King, Ltd. v. Bennett v. (quoting Spear, 163, 121 L.Ed.2d 198 (2001)). Apparently, the Government (1997)). say goes decision on to princi- then suggest

means this “bedrock that, makes no mention ple” effectively the Gilardis’ because “RFRA forecloses standing” intent,” nor prudential Ass’n, states “that sional Clarke v. Sec. Indus. Article III constitutes the exclusive 388, 394, set of requirements standing,” prudential a prudential require- standing requirements apply must applies ment that unless expressly negated RFRA cases addition to Article III re- Bennett, by Congress. See 520 U.S. at quirements. Finally, Id. the decision 163, 117 S.Ct. 1154. There is not the holds that the shareholder standing rule slightest doubt in this case that the Gilar- component is an established of prudential dis’ cause of action is within the zone of standing respectfully doctrine. Id. I dis- protected by interests RFRA. agree. noted, already As the Autocam decision Autocam cites in support Franchise Tax part rests in assumption that “Con- proposition that the shareholder gress did not prudential remove [the] standing component prudential rule is a standing [shareholder] limitations when it standing doctrine. But Franchise Tax enacted RFRA.” 730 F.3d at 623. This merely that think” stated “we the “share- reasoning is fallacious because neither the holder standing” rule is “related to” the Government nor the Sixth any Circuit cites principle of prudential standing that re- authority holding that the shareholder quires plaintiff legal assert his own standing prudential rule was a limitation interests. 493 U.S. at 110 S.Ct. 661. governing Free Exercise claims before the actually rely Franchise Tax did not on the enactment of RFRA. Supreme Since the standing shareholder rule to conclude that Court has never pruden- held that such a plaintiff standing. lacked Id. at tial standing requirement limits who 110 S.Ct. 661. can Supreme We find no pursue claims, Free Exercise it is a non applying decision the shareholder sequitur say that “Congress legislates standing rule to uphold the dismissal of a against background Supreme of [the party’s law suit for “prudential want prudential standing Court’s] doctrine.” standing,” nor can citing we find decision (alterations Id. in original). general Franchise Tax for this idea. Third, Bennett makes clear pruden- Autocam’s reliance on Spear Bennett v. tial standing can be negated by Congress. Bennett, also misplaced. seems In If any there were prudential standing re- prudential standing doctrine to which the quirements applicable to Free Exercise Court was referring was the “zone of in- claims before RFRA, the enactment of test, terest” not the shareholder standing Congress eliminated them when RFRA 162-63, rule. 520 U.S. at 117 S.Ct. 1154. Bennett, passed. was the Court held In many involving cases challenges to ad- that a statutory provision stating “any actions, ministrative agency in addition to person may commence a civil suit” was determining petitioner whether a has Arti- sufficient to make it clear any party cle III standing, a court must also deter- who satisfied requirements of Article mine sought “whether the interest to be III bring could suit to an protected challenge agency complainant is arguably action under the statute. 520 within the U.S. at protected zone of interests to be S.Ct. 1154. The regulated by holding in the statute or Bennett constitution- guarantee al controls disposition question.” Ass’n this case Data with Processing respect Orgs., prudential Serv. Inc. v. Camp, standing. RFRA tellingly states that “[standing to assert a (1970). The zone of inquiry, interest which claim or defense ... governed by shall be is “basically one of interpreting congres- general rules of standing under article (“To at 167 this Reynolds, permit U.S. III the Constitution.” U.S.C. of 2000bb-l(c). gov- phrase permit every The “shall be ... in ... citi- would effect III, plain makes that Article by” it erned unto zen to become a law himself. Gov- more, with to nothing respect controls and only could exist name under ernment RFRA. claims under circumstances.”). such sum, agree majority I the In with cases, early Supreme the rou Court standing to pursue the have Gilardis tinely religious held that activities must be note, important RFRA. It is to claim under public legis subordinate to general welfare however, standing rests that the Gilardis’ thus for exempt lation. Mormons were Freshway. inextricable ties to their of laws religious the sake exercise from operated as an exten- companies The criminalizing polygamy. Reynolds, 98 beliefs; religious sion of the two owners’ 145; Cleveland, 20, at U.S. 329 U.S. at minority no shareholders with there are A S.Ct. 13. child who wished to distribute Thus, cognizable views. the con- different religious family literature with her was not injury alleged encroach- stitutional —an exempt from labor v. child laws. Prince only personal religious ment on exercise— Massachusetts, 321 U.S. 64 S.Ct. in this because the exists case Gilardis’ (1944) (“[T]he 438, 88 L.Ed. 645 state has companies are vehicle fully-owned range of power limiting parental a wide they express personal religious their which authority things affecting freedom and views, delivery trucks to e.g., direct includes, welfare; the child’s and that bumper conveying stickers “their display extent, some matters of conscience and sanctity views the religious regarding conviction.”). religious And in Braunfeld Appel- public.” human life to the Br. of Brown, upheld application v. the Court at 11-12. lants Sunday closing of a law Jewish mer compa- Mandate applying The their chants who observed the Sabbath on Sat religious touches the exercise nies Gilardis’ urday, though even the law “ma[de] rights touching under RFRA. The is not practice of more ex beliefs substantial, satisfy but it is sufficient to pensive” by days forcing them close two requirements Article III. The merits 1144; 605, a week. 366 at 81 S.Ct. quite under RFRA is the Gilardis’ claim Maryland, accord McGowan v. matter, another however. (1961). 1101, 81 S.Ct. Jurisprudence Sunday was closing The law intended II. Free Exercise community tranquility, a “day establish Principles: A. First Limited general for the respite recreation” of the Free Reach Exercise Clause citizens, Braunfeld, well-being of history Ex- Through the entire of Free down “[t]o strike Supreme jurisprudence, ercise legislation imposes only ... an indi which that the principle has remained true to ... religion burden on exercise of rect Exercise does Free Clause not ensure radically lati operating would restrict any regulation freedom from to which legislature.” tude Id. Indeed, objection. party holds 1144. consistently recognized has the Court Free history one When studies any problematic rule be be- such would jurisprudence Exercise the United beyond any place it “would the law cause States, Ex- it is Free inescapable under act done claim of sanction.” States, First ercise Clause Amendment Cleveland United (1946); narrowly good reasons. 91 L.Ed. accord been defined (1) point This was amplified Justice O’Con- compelling furtherance of a nor in Lyng: interest; governmental much might

However we wish that (2) is the least restrictive means of otherwise, government were simply furthering that compelling govern- operate required could not if it were mental interest. satisfy every citizen’s needs § 42 U.S.C. 2000bb-l. range and desires. A govern- broad RFRA was enacted to overturn the Su- ment activities—from pro- social welfare preme Court’s decision in Employment Di- grams foreign aid to conservation vision, Department Human Resources projects always be considered es- —will Smith, Oregon 110 S.Ct. spiritual sential to the well-being of (1990), which had citizens, some often on the basis of sin- vitiated the substantial burden/compelling cerely held beliefs. Others will governmental interest test enunciated in very find the deeply same activities of- Sherbert, 83 S.Ct. 1790. See fensive, and perhaps incompatible with 2000bb(b)(l) 42 U.S.C. (stating that a their own search spiritual fulfillment purpose of the statute is “to restore the and with the religion. tenets of their compelling interest test as set forth in” The First Amendment apply must to all Sherbert). undisputed that, It is also in alike, give citizens and it can to none of RFRA, passing Congress meant to restore them a public programs veto over that body the entire of Free jurispru- Exercise prohibit do not the free exercise of reli- developed dence that during the twenty- gion. not, The Constitution does years seven following the Court’s decision cannot, courts offer to reconcile the vari- up Sherbert until the Court’s decision in competing ous government, demands on See, Rep. Smith. e.g., 103-111, S. at No. many of them rooted sincere religious 8-9 reprinted in 1993 U.S.C.C.A.N. belief, inevitably arise in so diverse 1892, 1898; Rep. 103-88, H.R. at 6-7 No. society task, as ours. That to the (1993). An examination of the relevant feasible, extent that it is legis- is for the case law during twenty-seven these years latures and other institutions. that, confirms RFRA, when it enacted 452, 108 atU.S. S.Ct. 1319. Congress never meant to abandon the first B. The Evolution of the Substantial principles that historically have limited the Burden/Compelling Governmental reach of the Free Exercise Clause. During Twenty- Interest Test The compelling interest framework was seven Years from Sherbert to Smith Sherbert, first articulated in where the RFRA states relevant part: Court held that South Carolina violated (a) general the plaintiffs rights Free Exercise when

Government shall substantially bur- unemployment denied her benefits on person’s den a exercise of religion even grounds that observing the Sabbath if the burden results from a rule of did not “good constitute cause” for declin- general applicability, except provided ing work on Saturday. 374 U.S. at 400- (b) in subsection of this section. 01, 83 S.Ct. 1790. The explained (b) Exception the state must show a compelling Government substantially refusing burden a interest for to accommodate the person’s religion exercise of only plaintiffs if it Sabbath observance. Sherbert demonstrates that application of the cited approvingly. Unlike Braunfeld burden to the person— Sherbert, involved a situation Braunfeld “[Mjanda- regulations strong state inter fare administrable: there was “a which day of rest tory [by employ- one uniform all providing participation est in covered workers,” “[Requiring exemp indispensable for all employees] ers and to the appeared ... for Sabbatarians tions vitality system,” fiscal of the ... id. problem of such an administrative present tax could system “[t]he exempted afford the magnitude, not function if denominations were allowed great competitive advantage, class so challenge payments because tax [it] requirement would have ren that such spent were in a manner violates their statutory un the entire scheme dered religious belief.” Id. at 408-09, Id. 83 S.Ct. 1790. workable.” 1051. Sherbert, however, as the Court later In In at least six more Free cases Exercise pursuant the Government acted explained, twenty-seven during years decided statutory “a that created to a scheme post-Sherbert, applied the Court the sub- exemptions.” for individualized mechanism burden/compelling governmental stantial Roy, 106 v. 476 U.S. Bowen disput- interest framework to hold that the (1986). 2147, 90 735 L.Ed.2d When S.Ct. ed Government action or im- regulation mechanism, creates a its a “state such burden, no that the posed substantial or exemption extend to an in refusal to an under justified reasoning burden was ... religious hardship tends to stance of in Lee and Braunfeld: neutrality, hostility, not towards exhibit (cid:127) States, Gillette v. 401 U.S. United Id. religion.” 28 [91 168] S.Ct. L.Ed.2d Free majority In the of the Exercise (1971) (the Military Selective Service twenty-seven during cases decided Act, persons oppose exempting who Sherbert, following applied the Court years generally, in war but not participating framework hold compelling this interest religious objections those hold who (a) that no substantial either there was war, particular a does violate Free (b) exercise, religious on that burden Exercise) (“Our do cases not at their by was justified burden Govern- support proposition farthest reach administering a statuto- ment’s interest in a opposi- stance of conscientious that, nature, by required its ry scheme objector any col- tion an relieves in order to be admin- uniform enforcement liding gov- a duty fixed democratic amplified these lines istrable. Court ernment.”). in Lee. analysis (cid:127) States, Bob Jones Univ. United Lee, the the Govern- upheld 574, 603-04 S.Ct. [103 U.S. Security application of Social taxes ment’s (1983) (denying tax-ex- L.Ed.2d 157] held a employer religious an Amish who empt status to school Security objection system. to the Social part practiced racial discrimination plaintiffs “contention that Accepting against of a belief interracial security social payment receipt and both violate dating marriage and did not faith,” Amish benefits forbidden Exercise) (“Th[e] governmental Free Security that Social the Court concluded eradicating racial discrimi- [in interest on imposed taxes a substantial burden substantially what- outweighs nation] Lee’s Free Exercise. 455 U.S. benefits ever burden denial tax Nonetheless, the Court found 1051. S.Ct. places petitioners’ exercise of Lee, justified burden because Lee, (citing 455 U.S. beliefs.” Braunfeld, application uniform the law Prince, 1051]; necessary general public [102 wel- at 259-60 S.Ct. was make 438]; Gillette, (1989); Sherbert, at 170 S.Ct. [64 67 L.Ed.2d 624] 828]; Reynolds, and [91 U.S. 437 S.Ct. 1790])). U.S. at 404 [83 S.Ct. 145)). 98 U.S. (cid:127) Lyng, 485 at 442 [108 S.Ct. 1319] (cid:127) Comm’r, Hernandez v. (no substantial burden on religious ex- 2136, 104 [109 S.Ct. L.Ed.2d 766] ercise even though building a road (1989) (denying tax deductible status across a stretch of national forest that paid training fees sessions that would irreparable “cause serious and practice were “the central of Scientolo damage to the sacred areas which are Exercise); gy” did not violate Free id. integral an necessary part (“Lee at 699-700 es [109 2136] systems lifeway” belief of the Na- tablishes that even substantial bur tribes); tive American id. at 450-51 justified by den would be the ‘broad (“[Sherbert] public maintaining [108 interest sound S.Ct. 1319] does not tax system,’ ‘myriad exceptions free of imply cannot incidental ef- flowing variety from wide of reli government fects of programs, which ” Lee, gious (quoting beliefs.’ may make it practice more difficult to 1051)). 260, 102 at S.Ct. certain religions but which have no (cid:127) Tony & Susan Alamo Sec’y Found. v. tendency to coerce individuals into act- Labor, 290, 471 U.S. [105 303 S.Ct. of ing contrary beliefs, to their religious 1953, (1985) (the 85 L.Ed.2d 278] Fair require government to bring a forward Labor Standards Act did not burden ”). justification.... compelling the exercise of a non-profit

religious organization or its During “associ twenty-seven this same year pe ates,” who received food and shelter in riod, the Court found Free Exercise viola exchange for carrying work out the only tions when disputed governmental the organization’s enterprises). commercial policy allowed for individualized or discrete (cid:127) Bowen, 476 U.S. at 706-07 [106 S.Ct. exemptions, and the state grant declined to (rejecting a claim using 2147] that exemptions or exceptions to accommodate social security number to administer religious beliefs. Three of the four suc programs Government violated the cases, Sherbert, cessful Free Exercise like Free Exercise of Native Americans presented a discretionary decision as to who believed the number impair would plaintiff whether the “good had cause” for (“[T]he spirit) child’s nature of refusing employment that conflicted with the burden is relevant to the standard Thomas, their religious practice. 450 U.S. government must justify meet to 707, (claimant 101 S.Ct. 1425 denied unem the burden.... of [Administration ployment benefits because he job refused a complex programs requires [benefits] assembling weapons on grounds of a certain conditions and restrictions. religious objection); Hobbie v. Unemploy Although situations, in some a mecha- Appeals Fla., ment Comm’n 480 U.S. nism for individual consideration will 136, 1046, (1987) 107 S.Ct. created, be policy ... decision to (claimant was denied unemployment bene treat all applicants alike ... not fits because of refusal to work on the ... case-by-case become involved in Sabbath); Frazee v. Dep’t Emp’t Ill. inquiries genuineness into the of each Sec., 829, 1514, 489 U.S. 109 S.Ct. 103 religious objection ... is entitled to (1989)(claimant L.Ed.2d 914

substantial denied unem (citing deference.” Thomas ployment Div., Review Bd. Emp’t Ind. Sec. benefits because he refused to 707, 450 U.S. 1425, 717-18 [101 S.Ct. work on Sunday). Yoder, case, Congress’ In Wisconsin v. of RFRA in the fourth C. Enactment 1526, Reaction to Smith: Restoration that lacked held the state the Court Burden/Compelling the Substantial Amish requiring interest compelling Interest Test Governmental their children to school for to send families twenty-seven years After of consistently grades. and tenth The Court ninth applying burden/compelling substantial is true that activities “[i]t reiterated that governmental interest framework decide based, individuals, when religiously even under arising eases the Free Exercise regulation pro ... subject are often Clause, Supreme inexplicably health, safety, general mote wel analytical discarded this framework in (citing fare.” Id. S.Ct. Smith, 494 U.S. 110 S.Ct. 1595. The 828; Gillette, S.Ct. Congress was swift reaction 1144; Braunfeld, 366 U.S. clear. 438; Prince, Reyn S.Ct. 145). olds, But it concluded Smith, the Court held that criminaliz- why not shown its education state had ing peyote the use of not violate did objectives required al Amish children to exercise of American sects free Native years one “an additional or two attend traditionally hallucinogen used during ... place formal school of their high did religious ceremonies. The Court informal voca long-established program of require provide compelling the state Id. tional education.” justification denying exemption, an words, 1526. In other there was no dem stating compelling Sherbert inter- need for uniform attendance onstrated “inapplicable” “an est test was to across- Indeed, sought rule. the accommodation prohibition criminal a partic- the-board on the by the Amish was at odds with 884-85, ular form of conduct.” Id. meaningful objective ensuring state’s pre-Smith 1595. While cases had Therefore, for minors. the education compelling applied often interest that the sim Court concluded Government to that a framework conclude claimant’s that edu ply had not shown the state’s substantially exercise was not objectives compromised would cational be burdened, or that com- the Government’s Am by granting exemption a discrete burden, justified any pelling interest ish students. step by eliminating further Smith went sum, In reading a careful of the Su- entirely. framework this preme Free decisions Court’s Exercise Smith, Congress response enacted twenty-seven years post-£%er- during the that “the RFRA. The statute notes Su- challenges bert that Free shows Exercise preme virtually eliminated re- generally applicable, neutral Govern- justify that quirement government rarely ment policies were successful. See imposed on exercise burdens McConnell, Origins Michael W. religion.” toward laws neutral U.S.C. Understanding Free Exer- Historical 2000bb(a)(4). § It states then Religion, cise Harv. L. Rev. (“Since RFRA “restore the com- (1990) purpose of is to the Court has interest test set forth” Sher- pelling rejected every claim for exercise a free appli- its it, “guarantee and Yoder and to bert exemption to come before outside in all cases free exercise of cation where unemployment narrow context of benefits (footnotes religion substantially burdened.” Id. governed strictly Sherbert.” 2000bb(b)(l). omitted)). intended,

Reports gress from both houses make clear RFRA reinstates the full Congress sought body to restore the entire pre-Smith jurisprudence. In Gon body jurisprudence of Free Exercise as it zales v. Espirita O Centro Un Beneficente during twenty-seven years existed Vegetal, iao do Rep. post-Sherbert. at 9 1211, S. 103-111, the Court No. (“Pre-Smith case law makes it clear that declining held that permit a “Christian only governmental place actions that a Spiritist” hoasca, sect’s sacramental use of substantial burden on the exercise of reli- hallucinogenic prohibited by tea the Con gion compelling must meet interest Act, trolled Substances violated Ex Free require test.... The act thus would not ercise under RFRA. The Government con justification every government such a prohibiting ceded that the sect from using action that have some incidental effect imposed hoasca a substantial burden on compel- institutions.... [T]he group’s religious exercise. Id. ling generally interest test should not be 126 S.Ct. 1211. The Court made clear that stringently construed more or more le- principles and Lee still Braunfeld niently Smith.”)-, prior than it was RFRA, apply under explaining that “the H.R.Rep. (“This No. at bill is not Government can demonstrate a compelling 103-88, any prior a codification of free exercise interest in application uniform of a particu decision but rather the restoration of the lar program by offering evidence that legal applied standard was in those granting requested religious accommo decisions---- [compelling [T]he interest] seriously dations would compromise its generally test should not be construed ability to program.” administer the Id. at stringently more leniently more than it 435, 126 S.Ct. 1211. Smith.”)-, prior was Cong. Rec. Applying principles, these the Court 1993) (statement (daily S26178 ed. Oct. concluded that the Government failed to (“Not Kennedy) every of Sen. free exercise prove that the Controlled Substances Act just claim prevail, will as not every claim required application uniform in order to decision”). prevailed prior to the Smith be administrable. Critical to this conclu- Indeed, says RFRA itself that “the com- sion was the fact that the Controlled pelling interest test as set prior forth in Substances Act Attorney authorized the Federal court rulings is a workable test General to requirement “‘waive the for striking sensible balances between reli- registration manufacturers, of certain dis- gious liberty competing prior govern- tributors, dispensers if he finds it con- mental interests.” U.S.C. sistent with public health and safe- 2000bb(a)(5) added). § (emphasis ” ty.’ Id. at 126 S.Ct. 1211 (quoting Hatch, RFRA, sponsor Senator ex- 822(d)). Furthermore, U.S.C. plained that the bill was amended to add granted Act an exemption to all members the word “substantial” before “burden” so of Native American tribes for the sacra- as to be “consistent with the case law mental peyote. use of Id. at developed prior the Court to the Smith S.Ct. 1211. peyote “The well-established decision” that require “does not the Gov- exception fatally also undermines justify ernment to every action that has Government’s broader contention that the some religious effect on exercise.” 139 Controlled Substances Act establishes a Cong. 1993) (daily Rec. S26180 ed. Oct. regulatory system closed that admits of (statement Hatch). of Sen. exceptions no under RFRA.” Id. at RFRA,

Since the passage of easily the Su- S.Ct. 1211. O Centro fits with- preme that, Court has confirmed body Con- of Free Exercise cases decid- whether the burdens were post- question was twenty-seven years during ed justified. Sherbert. contrast, cannot claim the Gilardis Mandate Does Not Substan- III. they being are forced to use contra- tially Appellants’ Reli- Burden directly which would conflict with ceptives, Objections gious to Use Rather, they com- religious their beliefs. Contraceptive Products companies that because their plain plan to Freshway’s health Requiring in- purchase insurance required not sub- products does contraceptive cover coverage contraception, they cludes personal

stantially burden the Gilardis’ parties to en- enabling owners are third contraception. The Gi- using objection This is they oppose. in conduct that gage only case be- standing this lardis have can find no specious claim. The Gilardis injuries that arise alleged cause of controlling position for their support to their application Mandate’s from the deci- No Free Exercise precedents. case alleged Their not to them. companies, Supreme sion issued satisfy the re- sufficient to injuries are plain- a substantial burden on recognized III, they have Article but quirements of plaintiff exercise where the tiffs substan- that the Mandate failed to show forgo required to take or is not himself religious ac- personal their tially burdens beliefs, violates his action that tivities. merely required to take action that but is things to do people enable other might Man- why the are three reasons

There reli- plaintiffs at odds with the that are burden the substantially not date does gious beliefs. First, the religion.” “exercise Gilardis’ the Gilardis require does not Mandate Furthermore, the Mandate does not re- contraception themselves. purchase use or directly facilitate quire the Gilardis require the Second, does not the Mandate The Gi- contraception. use of employees’ Freshway’s employ- encourage Gilardis that their lardis do not contend directly contraceptives any more ees to use Freshway pays violated when exercise is Freshway to by authorizing do than pur- might use to wages employees remain wages. Finally, the Gilardis pay Mandate contraception, and the chase disapproval express publicly free to to facilitate require the Gilardis does not products. contraceptive contraception any more direct- use of by authorizing they already do ly than require the Mandate does Because support- Amici wages. Freshway pay to engage in con- personally to the Gilardis in vain beliefs, attempt ing position the Gilardis’ religious their prohibited duct and between the Mandate distinguish in which to every from case this case differs First, that the they argue paying wages. a burden has found substantial the Court to become the Gilardis requires Mandate Centro and exercise. on increasing the cause” of instance, an “essential Yoder, dispute was no there contracep- employees who use substantially number of regulations to whether the as Theologians and Catholic tion. Br. of 28 religious exercise. plaintiffs’ burdened But the Gilardis at 22-23. Ethicists policies those disputed The Government in- cause” of of an “essential no more plaintiffs, very plainly prevented cases when contraception creasing the use of reli- engaging their personally, from for a Freshway pay to they authorize and home- (using hoasca gious practices use to employees might children), plan that only benefits one’s and schooling they require than are when tives. The get contraception Mandate does not wages employee authorize that an Gilardis Freshway’s to transfer funds from might purchase contraception directly use to she accounts to the manufacturers or would not be able to afford. contraception. otherwise retailers of Nor are the companies required to deliver or distribute attempt distinguish Amici to be- also contraception employees. to Under the paying wages by tween the Mandate and Employee Security Retirement Income arguing covering contraceptive prod- Act, 1132(d)(1), § Freshway 29 U.S.C. is a giv- ucts is akin to the difference between legal entity distinct from its self-insured ing underage person “gift an a certificate” group plan. plan operated health is beer, buy giving money and him that he administrator, and, by third-party a pursu- Id. at 21-22. But might spend on beer. privacy ant to health regulations, the Gi- analogy coverage this fails. Health under actually lardis are prohibited being from giving gift the Mandate is like certifi- informed employees whether individual buy specifically, cate to beer but more like purchase contraceptive products, or about gift supermarket certificate to a where any regarding other information employ- recipient may purchase whatever is ees’ health care decisions. See Br. of available, including beer. Just the Gov- Separation Americans United for directly encourage ernment does not reli- al., State, et Church and (citing at 29-30 gion when it provides recipi- vouchers that 164.510). 164.508; § C.F.R. 45 C.F.R. may spend ents choose to Moreover, procure the Gilardis are free to schools, directly the Gilardis do not en- Mandate-compliant coverage for em- courage contraception the use of when ployees through entirely an independent, they provide insurance coverage that re- carrier, third-party insurance cipients may choose to spend on contra- rather than Simmons-Harris, administering ceptives. Zelman v. group plan. their own health Id. This cry personally pur- is far (2002) (“The chasing contraceptives delivering them incidental ad- employees. mission, vancement of a religious or the perceived endorsement of a mes- Finally, suggest the Gilardis that be- sage, reasonably is attributable to the indi- Freshway cause required is to offer health recipient, [party vidual not to granting insurance contraception, they that includes benefits], whose role ends with the being pressed effectively owners are benefits.”). disbursement of endorse the contraception. use of This claim Supreme fails because the Court has

Amici also contend that the difference held that a party’s First Amendment between the paying wages Mandate and rights are not violated when he must com- akin to the person difference between a ply with a policy Government that sends a opposes penalty who the death being re- message contrary Hence, executions, to his beliefs. quired pay taxes fund an higher institute of education be being required “purchase drugs required military to host recruiters on injection lethal personally deliver campus, if strongly opposes even it mili- facility them to the where the execution tary policy. See v. Forum place.” will take Br. of 28 Catholic Theo- Rumsfeld Inc., Rights, Academic & Institutional logians and Ethicists at problem 19. The extraordinary with this rather 126 S.Ct. example is (2006). that comply regula- the Mandate not Parties who with a require does to nearly degree per- contrary Gilardis have this of tion to their “remain[ ] beliefs sonal in providing contracep- involvement free to from disassociate [themselves] they Freshway pay wages; to remain 126 S.Ct. 1297 Id. those views.” omitted). (citation publicly express disapproval The Gilardis likewise free to their themselves to “disassociate” contraceptive products. free of Because the remain suggest that message might that any from cannot show a substantial burden Gilardis They may de- contraception. they endorse exercise, they personal on their contraception, of the use publicly nounce on of their prevail cannot the merits instance, by issuing a statement I RFRA claim as matter of law. would their employees expressing Freshway’s therefore affirm the District Court’s denial contracep- of the Mandate and disapproval injunction preliminary ground, on this of tion; autho- they are free to continue inquiring without into whether the Man- slogans on com- rizing Freshway display compelling governmental date serves a in- their delivery expressing trucks pany terest. sanctity of human life. about the views ways the can There are countless Gilardis Compelling IV. Inter- Governmental involuntary compli- make clear that their Justify the Mandate ests signify not that ance with federal law does deny I though prelimi- Even would contraception. of they endorse the use nary injunction ground on the and Health Insur- Group Health Plans cannot show that the Mandate Gilardis Relating Coverage of Pre- ance Issuers substantially burdens their exercise of reli- Protec- Under the Patient ventive Services gion, I will also address the Government’s Act, Fed.Reg. tion and Affordable Care compelling respond interests order to 2012) (Feb. (“Nothing my colleagues’ opinion point. on this employ- regulations precludes final these Centro, the Court made clear that O expressing opposi- their ers or others “the Government can demonstrate a com tion, contraceptives, if to the of any, use application interest in uniform of a pelling anyone contraceptives, or requires to use program by offering evidence particular providers prescribe health care requires granting requested religious ac their contraceptives doing against if so is seriously compromise would beliefs.”). commodations program.” ability its to administer reasons, foregoing the Gilardis For the 1211. The Govern Mandate cannot establish that the simply defending ment has met this test objec- personal their substantially burdens therefore satisfies Mandate. The Mandate Mandate does contraception. tion to compelling interest test under O Cen Gilardis; regulates it regulate not Lee, tro, Braunfeld, and Hernandez. Mandate re- companies. So the Gilardis, save what is quires nothing of the obviously the com- The Mandate serves op- required any managers of of business public promoting interests pelling subject law. And we do erations to federal health, welfare, Br. gender equality. for- normally managers assume that See, e.g., Bd. Appellees for the 38-40. personally affronted profit companies are Rotary Rotary Int’l v. Club Dirs. requirements of federal law. Duarte, (1987) (“Even if [the Act] 95 L.Ed.2d Mandate does not particularly, More slight infringement does work some require purchase the Gilardis to use or association, right expressive [plaintiffs’] themselves; not re- contraception it does justified because infringement Freshway’s em- quire them to facilitate interest compelling the State’s any more serves contraceptives use of ployees’ against worn- authorizing eliminating discrimination directly than do 1240 (Dec. 2009) (statement 1,

en.”); Jaycees, 468 Roberts v. U.S. U.S. S28842 Sen. 626, 3244, Mikulski))). 609, (1984) equal (“Assuring women access to Furthermore, it is critical func- to the advantages ... goods, privileges, and tioning of the Affordable Care Act’s statu- clearly compelling furthers state inter- tory exemptions scheme that from the Prince, ests.”); 64 S.Ct. 438 are, exemptions Mandate like from the laws); (upholding child labor Olsen v. tax, Security Al- extremely Social limited. (D.C.Cir.1989) DEA, F.2d lowing religious exemptions for-profit, use). (upholding regulating drug laws corporations secular would undermine the Contraceptive products are used for If coverage universal scheme: the Gilardis’ beyond purposes preventing health care companies exempted covering were from pregnancy. They pre- unwanted contraception, corporation’s another own- prevent Contracep- scribed to disease. might just ers as well seek a ovarian, tives the risk of reduce endometri- exemption covering preventa- from certain al, gynecologic cancers. See Br. of the Scientist, A tive vaccines. Christian whose Alliance, Ovarian Nat’l Cancer et al. at 5- religion historically opposed conven- based, (describing how the Mandate is treatment, tional medical might claim that part, ensuring that women have ac- corporation his a religious entitled to cancer-preventative cess to benefits unre- exemption covering from all medical care preventing pregnancy). lated to Contra- except healers who treat medical ailments ceptives preserve and sterilization also Vitello, with prayer. Paul Christian Sci- diabetes, health lupus, of adult women with Medicine, ence Seeks Truce with Modem conditions, and heart who would be at 24, 2010, A20, N.Y. Mar. at avail- Times, physical if pregnant. risk became http://www.nytimes.com/2010/03/24/ able at See Br. of Nat’l Program, Health Law et nyregion/24heal.html?pagewanted=all&_ al. at 7-13. (last 2013). r=0 visited Oct. Muslim Coverage contraceptive products or Jewish might business owners claim a gender eliminates discrimination because religious exemption covering any the cost of contraception dispropor- falls pork products medication derived from women, tionately on and the costs of health (for instance, gelatin used to make generally care are much higher for women capsules coating many Pir- pills). S. than men. Br. for Appellees at 41 Pinals, zada Sattar & Debra A. Letter to (“Congress found that ... ‘women of child- Editor, Taking When Medications Is a bearing age spend percent more out- Sin, Psychiatric ” Services of-pocket health care than costs men.’ available http://journals.psychiatry Cong. (quoting 155 (daily Reo. S28843 ed. online.org/article.aspx?Volume=53& 2009) (statement Dec. of Sen. Gillib- (last page=213&journalID=18 visited rand))). inequality Gender in the cost 2013). Oct. Just as Lee and Braun- caused, health part, by care is the fact feld, point whole of ... a ‘uniform’ “[t]he that many health specific services to wom- [policy] ... by excep- would defeated be[ ] en historically have been excluded from Centro, tions.” O 546 U.S. at coverage. insurance Br. for Nat’l Sherbert, (quoting S.Ct. 1211 374 U.S. at (“Con- Center, Women’s Law et al. at 7 (discussing Braunfeld, 83 S.Ct. 1790 gress help intended ... alleviate the 1144)). 608-09, ‘punitive practices companies of insurance charge give existing exemptions women more and to the Mandate [them] ” less in Cong. (quoting benefits.’ do not establish that the Government lacks Rec. coverage, they as contend enforcing provide health interest compelling employ- doing. Ap- Br. of for-profit they secular are committed large, all against First, are not as exemptions at pellants ers. 13-14. make them out to be. the Gilardis

broad as only permanent, specific exemption The plans is grandfathered for exemption The religious, from the Mandate is for non- a means for intended to be temporary, profit employers. C.F.R. employers into transitioning gradually (current 147.130(a)(l)(iv)(B) § rules defin- plan A health loses mandatory coverage. religious nonprofits in terms of Inter- ing changes soon as it status as grandfathered status); Coverage of nal Revenue Code benefits, employer-con- cost-sharing, its Preventative Services Under the Certain § 147.140(g). terms. 45 C.F.R. tribution Act, Fed.Reg. Affordable Care Health and Human Department of The (Feb. 2013) rules ex- (proposed is that 66% “mid-range estimate” Service’s empting any non-profit organization that large and 45% of employer plans of small religious organization). itself out as a holds relinquish grand- their employer plans will exemption religious nonprofits for This by the end of 2013. Inter- fathered status surely not undermine the Govern- does Group for Health Plans im Final Rules position ment’s uniform enforcement 34,538, 34,- Insurance, Fed.Reg. Health scheme, way in the is essential to the 2010). (June 17, exemption for Native American tribes fact, voluntarily relin- In the Gilardis using peyote was fatal to such a claim O Freshway’s grandfathered status quished Centro, existing In exemp- Centro. O increasing employees’ co-payments by by peyote tion for the use of Appellees doctor visits. Br. for for larger American tribes was much Native 43; at 25. That the Gilar- Appendix Joint exemption sought than the the 130 grandfathered voluntarily relinquished dis If Spiritist members of the Christian sect. Man- despite opposition to the status Substances Act was admin- Controlled Department’s prediction supports date for larger exemption with a much istrable likely employers are to do that most other Americans, why would a smaller all Native term, they inevitably in the short will so for 130 hoasca users defeat the exemption coverage plans to accommo- modify their Furthermore, the nature of the scheme? changes in the cost of health care. date sought O Centro—the Chris- exemption Furthermore, contrary to the Gilardis’ sacramental use of tian sect’s Seperatist than fif- suggestion, employers with fewer indistinguishable essentially hoasca—was ty specifically exempted are not employees exemption that had from the nature they Rather are ex- from the Mandate. Amer- already granted been for the Native being required empt altogether peyote. use of ican tribes’ sacramental provide coverage health under the Afford- cry is a far from the situation This case 4980H(e)(2)(A). Act. 26 U.S.C. able Care exemption sought in Centro. The O seen provide businesses that do elect Small secular, for-profit cor- the Gilardis many do in order to coverage health —as larger than potentially is much porations competitive employ- benefits to offer more non-profit religious enti- exemption pro- receive tax benefits —must ees and to In Mandate. ties that exists under .the complies with the Man- coverage vide addition, in this case exemption sought 42. Appellees date. Br. for the fundamentally exemp- different from the words, apply would other the Mandate already granted. been tion that has they if fewer than the Gilardis even had recognized that federal long fifty employees, long so chose differently to tions in Babalu regulations apply Church the Lukumi workplace of secular, Hialeah, 520, than to for-profit corporations Aye, City Inc. v. 508 U.S. of organizations. E.g., non-profit religious 2217, 113 S.Ct. L.Ed.2d Evangelical Lutheran Hosanna-Tabor prohibiting where the ordinances animal — EEOC, Church and School replete exceptions sacrifices were so with (2012) 694, -, 181 L.Ed.2d 650 purpose that the Court concluded their (Free shields a minister of Exercise Clause “suppression was of ... the Santería wor- being from sued for religious non-profit 534, ship service.” Id. 113 S.Ct. 2217. with Disabilities violating the Americans very It is to recall that important Act); Presiding Bishop Church Corp. of rejected argument in Lee that Court Latter-day Saints v. Jesus Christ of 327, exemptions limited from the Securi Social Amos, 2862, 97 ty proved tax the Government lacked a (1987) (Title exemption VII’s compelling interest in uniform enforce non-profit provisions pro churches from for-profit employers. ment all The Court hibiting does not religious discrimination explained Congress justified in was Clause); NLRB v. violate Establishment “dr[awing] exempting a line ... the self- Chicago, Bishop Catholic (1979) (inter employed persons Amish but not all work preting ing National Labor Relations Act for an employer.” Amish 455 U.S. at Church-operated exempting as educational 102 S.Ct. 1051. The Court’s reason National institutions from Labor Review ing equally applicable is here: “When fol In jurisdiction). exempting Board’s reli particular lowers of a sect enter into com gious non-profits, Department thé activity choice, mercial as a matter of Health and Human Services reasoned that they accept limits on their own conduct as “[rjeligious accommodations in related ar a matter of conscience and faith not law, exemption eas of federal such as the superimposed statutory be on the schemes religious organizations under Title VII binding which are on others that activi Act of Rights the Civil are avail ty.” explained Id. The nonprofit religious organizations able to “[gjranting exemption an from social secu not for-profit organizations.” but secular rity employer operates taxes to an to im Coverage of Certain Preventive Services pose employer’s religious faith on the Act, Under the Affordable Care 78 Fed. Id.; Hernandez, employees.” accord (Feb. 2013). Reg. The Amer (“The U.S. at S.Ct. 2136 fact that icans with Act exempts Disabilities also Congress already crafted some deduc but non-profits, for-profit, exemptions tions and in the Code also is of corporations. secular U.S.C. consequence, guiding principle no for the (2). 12113(d)(1), tax uniformly applicable is that a ‘must be If an exemption religious non-profits all, except Congress provides explicit proof were taken as that the Government ” Lee, ly (quoting otherwise.’ 455 U.S. at lacks a compelling enforcing interest 1051)). 261, 102 S.Ct. secular, regulations against for-profit cor- Lee, Freshway, employer and oth- porations, suggest this would that secular for-profit corporations er are different corporations should likewise be entitled to religious non-profits use VII', religious exemptions from Title profit, labor to make a than rather Act, National Labor Relations and the perpetuate values-based mis- with Americans Disabilities Act. Further- more, financial choosing sion. to use labor for exception the Mandate’s for reli- gious non-profits nothing excep- gain, corporation like the its sub- owners legislation mit Ti- themselves —such VII, HENTIF, Fadhel Act, Hussein

tle the Fair Labor Standards Saleh Detain- Haykal Act, ee and Americans with Mohammed Disabilities and the Saleh Hen- tif, as Next Friend designed protect Affordable Care of Fadhel Hussein Act— Hentif, health, Appellants Saleh safety, and employ- welfare of They voluntarily capitalize ees. cannot on labor but their personal religious invoke OBAMA, Barack President deny employees values to the benefit of States, of the United promote employee laws enacted to welfare. al., Appellees. et voluntarily Because the Gilardis have No. 12-5314. labor, to capitalize chosen on have United States Appeals, Court of agreed accept certain limitations on District of Columbia Circuit. their conduct arise from the Govern compelling ment’s in securing interest Argued Sept. 2013. safety employ welfare of their Decided Nov. 2013. reason, ees. For this even if the Man date were a substantial burden

Gilardis’ exercise—which it supports

not—this record the conclusion justified by the burden is the Gov

ernment’s compelling interest in enforc

ing public-welfare statutory scheme

that, tax, like the Security simply Social

“could not function” if for-profit employ

ers of various “denominations were al

lowed to the ... challenge system be payments

cause ... spent were in a

manner violates their belief.” Centro,

O 546 U.S. at Lee, 1211 (quoting 1051). judgment of the District Court

should be affirmed.

Case Details

Case Name: Gilardi v. United States Department of Health & Human Services

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 1, 2013

Citation: 733 F.3d 1208

Docket Number: 13-5069

Court Abbreviation: D.C. Cir.