we'll your argument does this morning in case fourteen fourteen eighteen versus burwell in the consolidated cases mr comment thank you mr chief justice and may please the court the little sisters of the poor and their face a dilemma that the religious freedom restoration act does not allow they can add here to their religious beliefs and pay millions of dollars in penalties or they can take steps that they believe to be religiously and morally objectionable and that the government deems necessary for them to provide contraception coverage through their health care plans now the government concedes the sincerity of these religious beliefs but it attempts to recast them as an objection to the very that genuine belief they were pacifists that if they registered as pacifists that that would mean other people would have to serve in their they were going to jail and many of them did go to jail because of this belief why is going to jail less burdensome or less important than paying a financial penalty oh i don't think it is just sort of my war but let me stick with the conscientious objector example in the draft context because i think the way to analyze a conscientious objector case is to say that because they face jail time there's clearly a substantial burden of course you get to the second part of the analysis and you probably would insist on a conscientious objector actually objecting but i think it's important to distinguish between a no let's stop there ok to the extent that a conscientious objectors good faith belief is that if i register someone will serve in my blue what burden is it on the government meaning if you are if you're looking at it in terms of strict scrutiny the government sends out how many notices to people to come and serve ten times you know a thousand and twelve hundred do you really think it makes a difference if it knows whether or not one person is not going to show up and if we're going down that road of what's the difference is why would that was survive i think it would because i think would be very difficult to administer that kind of system if either you couldn't even know about the objection or you couldn't take any steps on the government's part to fill that spot but i think what's critical of that isn't that the same thing here if you don't know who can pay or who eligible who's not eligible or who's eligible to pay how does the system worked well two things your honor one this is perhaps the unique government program where the government can provide an exemption without actually requiring somebody to opt out because that's exactly what they do for the churches for the integrated auxilary and certainly disorders to tell us that their church plans have to tell the government their church plan somebody has to tell the government who is eligible or not eligible that i was that different than military personnel your honor that's just not true with respect to the churches their integrated auxilary and the religious orders that stick to their needing and only engage in religious activity so factually there's that distinction but i think the more important thing your honor is i would distinguish between the situation where somebody has an objection to opting out because the government's going to take wholly independent steps to find somebody to fill their spot and a conscientious objector who objects to objecting on a form where the only way they can object is a thing list the name of somebody else who's draft eligible who will then be obligated to serve in their begin again there and that's what we're talking about i would be delighted with delighted to that justice can be my point was simply that my clients do not object to objecting and part of the reason you know that is they have not been shy about objecting they told the government in the regulatory process that they were making a mistake when they limited the true exemption for religious orders to only those religious orders that stuck to purely religious things and my clients the little sisters couldn't qualify because they go out and they serve the elderly poor on so but what happens if somebody did just object to object and seems as though all your arguments would apply the same way in other words somebody comes in and says i do object to object and because object and will make it easier for the government to fill my slot that's a perfectly understandable thing to say and and that's part of my sincere religious belief and you say the sincere religious belief is what controls and  too it would seem under your very theory you would have to say that that's a substantial burden even if it's just object into objecting to things justice kagan first it would only qualifies as a substantial burden if the objection requirement was in force with massive penalties and that's a relatively rare situation but it is yes i mean we have the same time it is as are here and the person is just object into object in and that's part of the religious belief because because that will make it more likely that the government will be able to fill the slot and to take efforts to say you know to provide contraceptives i understand just asking the priest me the second part of my answer which is i think the right way to understand that hypothetical and as i was explaining to justice kennedy it's just a hypothetical it's a hypothetical that's directly implicated you are very theory of the case because your theory of the case says that everything depends on a person coming in saying this is against my religion and that he in the end will in the be all well i don't think that's our position our position is that the sincerity of our religious beliefs the government can question them they've conceded to them here there's a legal analysis about the substantial burden but the substantial burden analysis in this case is very clear because of these millions of dollars of penalties the exact same penalties that were issuing hobby lobby in the courts that it was using case unsubstantial certain answering the question i'm trying i'm trying to with all due respect it is that brings you to if you have everything else the same that brings you to the second part of the riff or analysis and i would think if our objection contrary to fact were we absolutely object to objecting if you come in and the government based on  the government provides this service through the exchanges through title ten through policy where everybody gets their their contraceptives from overall government policy we in fact object to none of those things but if we did i think we would lose control and you would have to go to the second part of the analysis which is to say is there a compelling interest has it has the government's response been narrowly tailored but essentially the object and the difference between object into object and  client's position is not a difference at all with respect to the bergen analysis well i do think my client's objection is distinguished from the hypothetical because this is not objecting to objecting i mean maybe one way to understand th is if there were in fact two forms one was an opt out form one was an authorization form my clients would have no objection to signing the opt out form they would very much have an objection to the authorization form and the government i guess is what i'm clemente i understand the factual distinction that you're making but the factual a distinction doesn't matter given your own legal analysis i don't think it does based on this court's precedents either but even if i'm wrong about that you could certainly write an opinion that says that there are three legs to the stool in this case there is the fact that the government demands more than an objection the fact that enforces it with massive penalties and the reality that if that happens then they're going to hijack our health plans and provide the coverage against our will what i don't understand mr comment is when will any government law that someone claims burdens their practice ever be insubstantial because every believer that's ever come before us including the people in the military are saying that my soul will be damped in some way i'm not naysaying that that is a there is a substantial perceived personal burden by them but if that's always going to be substantial how will we ever have a government that functions we ever have anything that the government can demand people to do in objecting that won't be a problem to things just a sort of my or the first is that i do think that what you're saying about the government not being able to function under the substantial burden and then the least restrictive alternative analysis that's exactly what justice scalia said for the court in the smith decision and justice o'connor took a different view and they had a healthy debate and you can question who had the better of the debate but there's no question which side of the debate comments is at all the side of the debate that settled which is if we're not asking you to do something except identify yourself and if who's going to do the action is either the government or a third party that that's the balance that we've struck that it's not a substantial burden if someone else is going to do the act that you're objecting to just to sort of mine or if the only action involved is a third party action like in the heart of the bowen against roy case or in the link it's you're right that's not a substantial burden but when the government says it needs more i want to be as clear as i can about this the government admits pages eighty seven to eighty nine of their brief that they need more just than to know that we raise our hand in opt out they also need additional information about our insured or  is then not dealing with the employer at all it has an independent obligation that is imposed by the government on it and not not the company spirit that's true if and only if we provide the form because it's not just the information on the form the government treats that form as an authorization in the case of self insured plans with  authorization the government the law the regulation requiring that but it doesn't matter where the you say yes or no and you could say i fill out the form i do not authorize i do not commit won't make any difference it makes all the difference justice ginsburg if we don't provide the form then the coverage doesn't flow we haven't provided the form in these cases and as a result the coverage hasn't followed the government thinks and i think it's most obvious with respect to the self insured plans but it's true of all of them the government thinks it needs something from us so it can take that something and make it a plan b because the government has another interest at sta one thing that you said and i want to clear that this is not involved at all no one doubts for a moment the sincerity of the belief of your client and all the this insistence charity of their belief is except that it's off the table any more than insincerity by the parent in the roi taste with question and none of these cases is that an issue that excepted but government has acted in this case an accommodation doesn't mean it's immune from riff or analysis and if what they gave my clients is what they gave the three hundred forty five thousand churches their integrated auxiliary is in the purely religious activities of religious orders if they gave that accommodation to my client we'd fill out any form they wanted too but the problem is we have to fill out a form and the consequence of us filling out that form is we will be treated very differently from those other religious employers and yes if you started to talk about self insured plans is it the case that the form or the notice  h s in that instance becomes a plan instrument in both cases your honor it becomes a planned instrument and i think you know the government thinks that our notification in this case is the functional equivalent of seven hundred form and the reason they required a form and this shows you it's not really an opt out because the way the regulations were originally designed you didn't raise your hand and tell the government i object you send a form directly to the insurer or directly to the t p relief is that we now can file a objection that the government treats exactly the same way they all they do that's different is they essentially it's a mailing rule they take our objection and then they provide that objection to the third party administrator and at least with the self insured plans that becomes every bit as much a plan document as the absa form seven hundred and with all due respect it's a little rich for the government to say this isn't your plan don't worry about this when there w interest is put in terms of seamless coverage if it's seamless to the end user then i don't think the little sisters perception that it's seamless to them and they are in fact complicit is an irrational belief by any stretch a fair description of a justice kennedy and i think the only problem the government's having understanding our position is that that health plan is somewhat intangible and i think if you put this in more tangible terms if the if the consequence of us filing the form w they would come into one of the little sisters homes and set up shop in a room they could pay us rent it would cost us a thing and then they operated to title ten clinic out of our homes i think everyone would understand that of course we're complicit in the coverage that's provided on our premises and just because this is more intangible i don't think the principle is any different and certainly from the perspective do do we accept the your client's view on complicity or do we have a pal graph analysis and see how far the causation go on to do we just accept your view on complicity and then just see with the accommodation is possible in this it is the least restrictive i think that's the role that your courts have had for the court because i think they don't want to get in the role of having the truth detector test and that and that's not just the hobby lobby decision that goes back to the thomas decision if you remember that decision you had a religious it here and who had an objection to formulating cylindrical tanks cylindrical things for that would go into tanks now there was a number of other jehovah's witness that was in the record that said you don't need to check to that that's not that big a deal it's too attenuated and this court specifically said we're not going to get in the business of refereeing those disputes and we're not going to get in the business of trying to figure out and second guessing whether mr thomas is really correctly understanding his fate and here you have a ton of amicus briefs that reinforce that the religious beliefs that are at issue here for the little sisters and for my other clients are not at all idiosyncratic are not at all wrong as a matter of faith but that's a not an area that you should get into i think you finished i  involved in the health care plan in major ways they probably figure sign papers every five months or every day and they choose insures that you all kinds of things and it's the topping the icing on the cake that pushes it over the edge which is that you have to fill out the form saying i have jack this is mine sure you then can contact my employees got out of it it's a whole bunch of things so the question is putting that all together now are they protected by reference i think the reason that the court went from sherbert in vernor over to smith was they couldn't figure out how to apply for britain for an er and it sherbert verner that refer picks up and this is at least one difficulty with it which is where i'm going and i've even read st benedict you know i'm not for religious purposes i'm trying to find out something about being a member of society sometimes when a religious person who's not a hermit or a monk is a member of society he does have to accept all kinds of things that are just terrible for him think of the quakers the quakers who object to viet nam think of the people who object to laws protecting blasphemy think of the people who object to speak shoveling the snow in front of the walk that will lead to the abortion clinic think of the christian scientists who know when they report the accident the child will go to the hospital or the adult and receive medical care that is against their religion so there are loads of things i've just given you for think of the taxes where there's no question that doesn't violate the religious  plenty of other things do so what's the line why do the quakers have to pay the taxes for viet nam but you don't find the religious jew or muslim getting an extra day off during the week when the law says nobody can work on sunday because there's sabbath is on saturday what is the law and i've been reading and reading to try to find a fairly clear simple statement of what that line is and how it works and to repeat the difficulty of sherbert verner which is what refrig does quite honestly doesn't help me but you might i'm going to try just prior to that i'm going is there a substantial burden on religious exercise that is going to weed out some claims if i was trying to claim that a tax on wine for example the quaker the quaker yes think that was a disability until birth no no no i'm just trying to tell you that that's one step it will beat out some i do think then there's going to be work to be done on the second half of the test and i think there are some fairly obvious differences between a regime where essentially the government itself by its own actions has showed that people can't opt out it's too important it's too universal and then you come in a case like this or like sherbert itself the thing that made sure of an easy case was the government of south carolina had already taken care of the sunday objectors so at that point their argument that the whole system would collapse if we take and it was not a particularly persuasive argument here are they taking care of the churches they've taken care of a religious order just like the little sisters if only the little sisters wouldn't go out and care for the elderly or they've demonstrated that this is an easy as for francesca mr chief justice and may it please the court the government here has the same interest that it has with respect to every other employee in this country who doesn't get contraceptive coverage from an employer based plans yet for all of these other employees the government tells us that it furthers its interests in other ways the government therefore needs to prove that those other ways are somehow insufficient when it comes to petitioners employees but the sum total of their showing in this case is limited to less than one column of one page of the federal register that is simply insufficient before the government can demand that organizations like catholic charities and the little sisters of the poor engage in conduct that all agree here they regard as sinful instead what we have here is a religious employer definition that is those organizations that get the full blown exemption as opposed to organizations like the petitioners here  that gives a full blown exemption to organizations even if they don't object to providing contraceptive coverage that treats identical organizations differently where you've got a catholic school on the west side of town that has to comply suggesting that once you have this  has in fact done in particular when you look at what congress has in fact done that is in fact the line that congress has drawn both in the title seven exemption where churches like the houses of worship and religious organizations like our clients get treated the same like in the tax exemption regime here the government's entire line is drawn from the tax world where the line where they they defined those who have to file informational tested governments are doing that and it does it have to that is can the take position that the little sisters of the poor are any less at the core of a quote unquote church than a house of worship where we have condor same with a university excuse me your honor the same with the universe i think with the university yes your honor because again when you look at how congress has drawn the line universities get the title seven exemption from religious hiring churches do a little sister well but you're answering really to the affirmative and to justice ginsburg question one should give it to the church you have to give it to any other religious organization that's that's your position not quite your honor i think what the problem is that the government has to draw definition that is coherent and that is rational and i think the problem here is the drawn the definition from the tax regime that doesn't apply when organization you have to keep preach the religious university the same i just find it very difficult right and your honor we're not suggesting that what we are suggesting is that when the government has the same interest here that it has for all of the other employees in this country that don't get coverage from from an employer based plan and it's not just the religious employers it's not just the grandfather plans in addition you have the self employed the unemployed and the employees of small businesses the government has the same interest with respect to all of those organizations the it was a very strong tradition in this country which is that when it comes to religious exercise churches are special and that you know we've said this most recently in hosanna to burra but it's a long line of cases which says that there's something very special about churches themselves and and if you're saying that every time congress gives an exemption to churches and synagogues and mosques that they have to open that up to all religious people then the effect of that is that congress just decides not to give an exemption at all and that's why there are some people who are extremely strong revenue supporters who have deserted this because right here professor laycock among them because of the mortal danger that it poses to churches and your honor just to be clear i am not suggesting that whenever you give an exemption to churches that exemption has to apply to all other religious organizations what i am suggesting is that when the government has the same interest with respect to both religious and secular employees the churches the religious employers the employees of small businesses the employees of grandfather plans and the government furthers that interest with respect to all of those employees in many other ways whether it's the affordable care act exchange recognize exempt from the law the small business the very small business once it has a number like in title seven fifteen million that's it the floodgates open and it has to make a mess to open what is the need them for the very small at all your honor but what i am saying is of title seven had an exemption that said you can't discriminate on the basis of race unless you've got a preexisting policy of racial discrimination in which case you can maintain that policy in perpetuity as long as you don't change it that's fine but i think that would undermine the the purpose of title seven and that's precisely the type of exemption but you have in the contraceptive mandate couldn't or perhaps the executive survey the employees of churches and of other religious non profits and categories of religious non profits the little sisters of big university and determine the percentage of employees in each of those groups who are members of the religion and draw a distinction among those groups based on on that survey and congress do that justice alito they could do that and they could do many other things as well we could also just why don't we just assume that if they are part of the if the majority are part of the religion that they're not going to buy contraceptives that's their religious tenet and so why are we worried this case at all well your honor because they were worried because there are some women who don't it here to that particular religious tenant and who have we perceive the government has determined have a real need for contraceptives and just a sort of my i think that goes to the larger problem with the government's case you which is the utter absence of evidence let's assume for the sake of argument is it the other utter absence there is plenty of evidence that was relied upon to show that when contraceptives are provided to women in a seamless way that the number of unintended pregnancy dramatically falls as does the number of abortions and so that health risks to women who want contraceptives who can't get it is proven scientifically and otherwise but just to sort of buy or that problem the problem is even listeners are whether you call it the problem of burdensome this that's the problem that exists not just with respect to the employers of petition with employees but with respect to every other employee who like petitioner's employees but you although that we exempt certain employers of certain size from title seven and it's not because we don't believe that racial discrimination is a bad thing and it's not that we're not committed to eradicating that problem but because at a certain point we have assumed as a society or as a government that you can't do everything so you can't take care of the health needs of one hundred percent of women but you can have a significant number why is that a judgment that is not entitle some respect because i think it means one of two things either the government is willing to tolerate all of the problems that identifies for petitioners employees with respect to the employees of grandfather plans and we understand that there are around forty four million of those with the expected the respect of the employees of small businesses with the respect of the employees of religious employers the unemployed in the self employed either they're willing to if they're willing to tolerate the problems with all of those people then it really does question whether they have a compelling interest in forcing these particular petitioners to comply but on the flip side if as they suggest in their briefs they're not actually willing to tolerate the problem with respect to all of those other people but instead think they can further their interests in other ways the question becomes why are all of those other ways that are sufficient for all of those other people suddenly insufficient when it comes to petitioners employees and that's the fundamental breakdown in the government side of the case more generally i think we see an absence of evidence on many of the critical issues here let's assume for the sake of argument we knew what the size of the problem was how many women out there actually lack access to contraceptive coverage and we don't know the answer to that and let's further assume that we knew how much of that problem would be reduced by forcing organizations like petitioners to comply we would reduce it by one percent fifteen percent fifty percent and we don't know that we still don't know whether the government could achieve a comparable reduction through less burdensome means and the very less burdensome means that it says are sufficient to further its interests with respect to all of the other employee use who'd like petitioners employees don't get contraceptive coverage from an employer base or franziska have to admit to not quite understanding this argument that it seems as though the most important laws the laws that serve the most compelling interests are often have exceptions and them are often small business exceptions they're often  transition rules like the grandfather one provision here and if every time that existed somebody could come in and say well the government must not really believe in this law because there's an exception to  it allow some people then i mean we might as well pack it all in there's not a law in town that doesn't have exceptions like that i don't think that's right your honor first of all the grandfather plan is not a transition will continue no sunset provision it allows it is a lower and lower every single year it's got lower for the first couple years and it's leveled off in the last two years of the percentage if you make any change in your health plan then you are out from under the grandpa the and it's inevitable that they allow employees to raise co payments at the rate of medical inflation without losing status and they allow you to continue adding employees to the plan without losing grandfathered status which i think partly explains why it's leveled off at about twenty five percent over the last couple years but even putting that aside i think that once you've drawn in massive exemption for both secular and religious reasons and reasons that it tends to undermine if you do want to two things either it shows your interest really isn't that compelling because you're allowed you're willing to tolerate a whole bunch of bad stuff for a whole bunch of other people or and i don't think that's really what it means here i think what it means here is the government is telling us that it's got the same interest with respect to grandfathered here's the incentives that you would put into place mr francisco you would be saying to congress congress next time you pass a law don't put in sampson for churches you're going to get in real trouble doing that don't write transition rules that will help people adjust to a new legal regime you're going to get in real trouble doing that don't write exemptions small for businesses even though there are very particular concerns that small businesses face you're going to get a trouble for that and those are terrible incentives to give to a legislature are they not new and not your honor i think what it means is that when the government claims an interest the overwhelming interest to force petitioner organizations like petitioners to violate their sincerely held religious beliefs that yes when it says we're going to exempt some organizations for purely secular reasons some organizations for political reasons and other organizations for religious reasons then it does i think your point is that and let's imagine a widespread government program filled with exemptions there are a smaller group of people who need an exemption for religious reasons we look at those other exemptions some seem to have good reasons some seem to have terrible reasons we really under the referer of the for so mehmet should example religious to right sure ok i've just described to you the united states tax code where we know that you do not have to have an exemption for those who are religiously exotic jep to objecting for example to paying taxes because was supported for sure your honor but i think it's what that's what i'm looking for same question and i'm not asking it to refute you i'm asking it because i'm looking for what the distinction actually is and for the reason i just said i don't think the distinction can be well you've exempted some people so you have to exempt the religious people too because that would run throughout the government of the united states so what if we know there is a distinction or at least i believe that when you tell me their son i want to know what you think it is and justice briar these are finally green factual the factual issues you know that i don't go how you want but i think that when you're looking at a regime like this one that has both religious exemption that has large exemptions for totally non religious reasons and then has the exact same problem that the government claims petitioners present with respect to all of the other employees in this country who just like petitioners employees don't trying to find the basis for the distinction between those things that we do require people to do despite their religious objection and those things that we don't and if you want to think there's no such difference just  as you've read newborn's brief listen more than two pages some go one way some go the other way he says of the people being involved met might be the answer but what your hand is united three that's a tough one but i think the i don't think there's a clear line for what things do we are quiet and what things we don't give you get what i direct away the law works i think the way the law works is it says the are you allowed to require them to do this particular thing that violates their beliefs and in making that decision you look at what the government how the government is treating other similar situations and if here the government is in fact same with respect to all of these other people who also don't get the coverage from their employers were willing to tolerate it or else willing to address the issue in other ways bra the answer is you have to look to those other ways to see whether there are sufficient for these employees or whether they're uniquely insufficient for exuberance goldsmith mask a question is there any accommodation that the government would offer and would in fact result in women employee is of your clients or students of your clients getting health care as part of an employer based plan or a student based plan getting contraceptive coverage is there any accommodation that would be acceptable your honor the accommodations that we've listed in our briefs would all be acceptable to know us through through another words is there is there anything you object to this notification is there any kind of notification that would be acceptable your honor if by submitting this notification or any other notification we got the same treatment as the religious employers then this notification other than the religious employers  their employees do not get contraceptive coverage through the employer based plan i'm suggesting i'm asking whether there is any accommodation that would result in the employ women employee is getting contraceptive coverage se sly through an employer based plan that you would find acceptable your honor possibly so possibly not and if i could explain we've not been offered that kind of alternative to consider i think the more distance you put between the petitioners on the one hand and the provision of the objection will cover to their employees on the other the less problematic it is from there what might be acceptable it puts enough distance easily enough distance is we filed a notice of objection and the government furthers its interest in the same way it furthers its interest with respect to all of the other employees who don't get coverage from an employer based plan the employees them so that your answer to justice kagan is wrong basically you're saying even  all you do is an opt out i raise my head and i tell you that i'm a religious objector and they somehow from this suit they know who your third party administrator is they have a general law that requires now all arisa plans and insurance companies to tell them who their clients or that if your insurer is involved in any way you object not necessarily honor again as mr clement was saying if there was an uber insurance policy where at no was the company that the government picked to provide in contraceptive coverage to all women in this country and we happen to use aetna i think we'd probably be fine paid for by the government plan but as long as you connect the insurer it is insuring the religious organization as well as that insurer is linked if the students will have to get something else they can't get what all the other students get on their health protection and justice ginsburg i'm trying to be careful because we have many clients that have many different views but i think as a general matter i could certainly see the case that if they're seizing control of our plans the plans that we are required to provide under threat of penalty and using those plans is the vehicle to delivering the objectionable coverage to our employees soley as long as they're rolled on those plans which is what this does then i could certainly see why many clients would view that as a substantial burden on their religious beliefs that's of course not the end of the analysis we then turn to the less restrictive alternatives and your honor all just conclude here it's quite clear that the government has alternatives because it's the same alternatives that it uses for everybody else and if all of those alternatives are fine with them they at least need evidence explaining why they're not fine for us as well thank you coun court recognizing hobby lobby the accommodation seeks to respect the religious liberty of petitioners by exempt exempting them from the contraceptive contraceptive requirement and to respect the interests of petitioners employees have been unfair for me to infer from the way you open your remarks that you can see that there is a substantial burden here and the question then is what is the permissible accommodation what's the lease restrictive alternative if you concede there substantial burden we do not concede there's a substantial burden justice kennedy we think we concede that the religious belief is sincere we're not question the sincerity of the belief but we don't think that in a case in which the and accommodate when the question is this when a religious objection is made to the independent arrangements of the government makes with third parties to fill a regulatory grant gap created by granting an exemption from a general generally put will that that qualifies us as well to use now you question their belief that they're complicit you know in a moral wrong no we do not we will not and then it seems to me that that's a substantial burden and the next question is whether there is an accommodation and whether that's the least restrictive so i would happy to discuss the substantial burden further but i do want to go to a separate what i think is the critical point on the question of how scrutiny applies if it does apply and it's this mr francesca spent a lot of time talking about the various alternatives that the government might be able to use in instead of the accommodation and i think there's a real problem with every single one of them and that every single one of them defeats the very purpose for which congress imposed the preventive services requirement not just with respect to contraception but with respect to all preventive services is that a group health plan i e the health plan that covers people through their employer or individual health insurance coverage i e the kind of coverage that sold on the exchanges shall include cost free all of the preventive services the whole point of this provision the whole point of it was to ensure that people who got health insurance would get the preventive services as part of their regular care from their regular doctor  other words your compelling interest is not that women obtain the contraceptive services your compelling interest is that women obtain the contraceptive services through the insurance plan or the third party administrator hired by the petitioners hired by the little sisters in other words it seems to me you can't say that what you're trying to do is make sure everybody has this coverage you want to make sure they have it through the program set up by the little sisters and that's what they object to yes i understand that dr but assuming for the moment and i am happy to discuss substantial burden further but assuming for the moment that we are in refer scrutiny because there is a substantial burden the point i'm making here and i do think this is critical is that the none of these options that the petitioners have identified going out on the exchange and buying a separate individual policy contraceptive coverage only policy title ten medicare medicaid with great respect every one of them would have to change the law to make them even eligible here but even if you could change the law every single one of them creates the very problem that congress was trying to solve in this provision because it would but wouldn't require setting up a one off jerry rigged separate channel to get contraceptive coverage  point is that it's the form in which the services are provided that you object to not the fact that they that they be provided are not because that's not the question now the words the petitioners use the phrase hijacking and it seems to me that that's an accurate description of what the government wants to do they want to use the mechanism that the little sisters the other petitioners have set up to provide services because they want the coverage to be seamless now maybe that's a sufficiently compelling government interest in the for which the services are provided but the interest is not whether or not women receive contraceptive services there and there are the petitioners do not object to the fact that the people who work for them will have these services provided they object to having them provided through the mechanism that they have set up because they think you know whether you or i or anybody else thinks they think that that complicity is sinful i understand that mr chief justice i understand that that's their position mean gauge with you on the question of whether that constitutes a substantial burden we think that that doesn't constitute constitute a substantial burden because the way that this accommodation is structured that although you're quite right it seeks from the perspective of the employee to ensure that the employee gets the protection that congress designed that from the perspective of the employer that this is provided through a separate program but you're saying don't worry religion you're not complicit that's what you're saying you know we're saying that judgment about complicity is up to you but that there is an objective limit that referral recognizes on the scope of what is or could nice a bill burton that that was true in the priest with case law referral and it was it was recognized in living in bowen and those are cases in which there was no doubt it seems to me then the analysis has to be whether or not there are less restrictive alternatives and if and if there is this the least restrictive over well i'm not as i said your honor if we're for scrutiny applies then this certainly is the least restrictive alternative and let me mention one of them suppose that it were possible for a woman who does not get contraceptive coverage under grandfathered plans or under a plan offered by a church or under a plan offered by a religious nonprofit to obtain a contraceptive only policy free of charge on one of the exchanges why would that not be a least a less restrictive alternative it has precisely the problem it's not a less restrictive alternative because precisely the problem congress is trying to overcome in the preventive services provision what type of a burden does that impose is it because these these exchanges are so unworkable even with the help of a navigator that a woman who wants to get free contraceptive coverage simply has to sign up for that on on one of the exchanges no you're on social have to insurance cards instead of one she'll have one from the employer and she'll have one from the this plan just as a lot of people have one insurance card for medical services and one for prescriptions yes for them taller vision for the very reason that the employee has to go out and get a separate policy even in the world that doesn't exist now because those policies can't be sold in exchanges now and when we can all that will come we can talk about that in a minute but continue without even in that hypothetical world that is not equally effective at achieving the government's interest because the whole point of this provision is that you get this care from your regular doctor as part of your regular health care without any barriers including any co pay barriers and i think think about it consider this please from the perspective of the woman employee she has a health plan from her employer she goes to that she goes to her doctor her regular doctor she may have a medical condition that makes pregnancy a danger for her she may be one of the women and this is about fifteen percent of all prescribe contraception who needs contraception to treat a medical condition or maybe she just wants the contraception that's appropriate for what happens under this under under petitioners regime is the doctor has to say to her regular doctor say to her sorry i can't help you it's not just that you don't get paid the prescription paid for it's not just that he can't write the prescription he can't counsel or educate why would that be but he would be he would be paid under the under the contraceptive plan because it wouldn't be her regular doctor she'd have to go out and buy the separate plan find a doctor who was willing to take the separate plan assuming assuming of course that their insurance companies willing to sell the separate wildly also not and they would be willing to sell them if you subsidizing them at one hundred  fifteen percent and just what you were doing in the case of those who provide services under insured what's the whole point here justice alito was that congress wanted to eliminate even what were perceived by most of the small barriers like a five or ten dollar co pay because the medical experts said that even though small barriers even when you're getting in as part of your regular coverage even though small barriers work is a sufficient disincentive that many fewer people use contraception than would otherwise and that in the contraceptive coverage what about that so grandfather plans let's talk about them as i do and i will answer your honest question directly but i do think the broader context matters here this is a transitional device the number of people who are in grandfather plans has dropped by fifty percent there is no reason to think it's not going to continue to drop and if it does continue to drop at the pace of the last four years we'll be at zero very soon but you know in the long run we're all dead but what's going to happen and in the interim what was the reason why congress did not require contraceptive coverage right away under the grandfather plans it required coverage right away under the grandfather plans for twenty five year old so that they could get coverage under their parents health insurance plan it would have been no great administrative difficulty for the grandfather plans to put in contraceptive coverage preventive care coverage right away just as they did for the twenty five year olds and yet congress said for the really important things like covering the twenty five year old graduate student yes you have to do that right away but for these other things including what we're talking about today you can continue to have it and not to provide that coverage for women as long as you maintain your grandfathered status your honor with congress passed for americans with disabilities act it made it didn't impose an immediate requirement that every building be retrofitted so that access to the disabled was possible what it said was in that context that where it's feasible to do so buildings shall retrofit and the new buildings shall have these access requirements no one would say that the government lacks a compelling interest in forcing the americans with disabilities act because congress decided on a transitional system this was a big program there were alliance interests congress decided on transition understood that this that this number is going to drop dramatically over time you want a good place to know why it's going to drop dramatically over time look at the declaration from the diocese of pittsburgh that page eighty six of the joint appendix where they say look we're sticking with our grandfather plan now because we don't want to trigger the contraceptive coverage requirement but it's costing us a fortune we have to change and that's the reality and that's why it's going to go down and then with respect to contraception itself your honor with the grandfathered plans as as the  institute of medicine and its study which is in the record said that contraceptive coverage is standard practice now and we shall have cited a study that said eighty percent six percent of all plans have contraceptive coverage so most of these women are going to have expensive to retrofit facilities to accommodate people with disabilities but are you saying that the burden of simply instituting coverage for preventive care as it was done for coverage for twenty five year olds is comparable to making architectural change you know but what i'm saying your honor is that this is unlike the exemption for small employees under under title seven which exempts seventeen million people from these fundamental protections against race and gender and religious discrimination and does so permanently this is a transitional device where over time you're going to get down a situation where virtually nobody has it is in the situation  being in a grandfathered plan and most of them getting some form of contraceptive coverage anyway so i don't think that it undermines a compelling agenda one bit and then we go back to the substantial burden question and i think that justice prior to this has been talking about how to draw this line when is it that government has to act to accommodate and when doesn't it have to act to accommodate there's some a meek i that have suggested a l that at least to me helps or some clarity to the cases are cases which is if what your religious belief is asking the government to do is to change its behavior with respect its regulatory behavior with respect to others then it can't be a substantial burden because we live in a pluralistic society in which government has to function to you can't spend your money on war we don't have to use you to promote the war but if you want to use others to promote the war you're entitled to do that as governor this is the line make any sense to you yes  want to hear what the religious groups are i understand they're asking is the government not to use its regulatory power with third parties who don't have a religious objection and forcing a burden on the women who are trying to help their parties that don't have the same religious objection think that is that i'm burdening them to do other things i think that is the essence of our position on substantial burden your honor and i believe it trying to answer justice briar's question about where that comes from i believe it comes from ling and bone which both recognize that there is an objective women and ling for example the court said that the that it did not doubt that the government actions w to have a devastating impact on the religious exercise of if you this is this is not just a case of the government dealing with a third party based on the petitioners objection the objection is that the government is hijacking their process and their insurance company their third party administrator that they have hired and set up to provide these services i understand the distinction between yes you can do what you want but you can't  compel other people to take actions that are consistent with your religious beliefs but that's not what's going on here it is the relationship between the ensure that the little sisters of hired are the third party administrator with respect to other other entities that is being used by the government to provide these services it's not just a third party it's being held if they want to and it's not just that they want third parties to take certain action i would agree with you to this limited extent mr chief justice that that's the context in which the government action occurs here and that the fact that the there is this relationship between petitioners and their employees is the occasion for government acting but there's two points that are critical i think and go to why we shouldn't consider this to be a cognizable work and the first one is that what we are doing when we act here is trying to make an alternative arrangement that comes as close as we can to ensuring that the employees who may not share the petitioner's religious beliefs get what the law entitles them to while at the same time ensuring that the employer does not have any legal obligation to pay for the coverage to provide the coverage in any way that in that i think the practical features of this are critical the employer cannot be charged for the coverage we even an insurance sharon's plan self insured either way cannot be charged  the company or third party mistretta has got to use separate segregated funds it's got to provide separate segregated notices in many instances it provides a separate insurance card to the employees for this part of the coverage so what so in that respect it is an independent arrangement with third parties and but that we may not they're not third parties they're the insurance company that the petitioners have hired it's the third party administrative that they have hired and right seems to be that the balance is pretty clear you want the coverage for contraceptive services to provide to be provided i think as you are as is said seamlessly you want to be in the one insurance package that's that is the compelling government interest and on the other side the question is whether or not people who have sincere religious objections to being complicit in that through the hiring of the insurance company the third party administrator on terms with ace provided whether the government's compelling interest outweighs those sincere willage objections is that a fair understanding of the case i think it is one fair understanding of the case we think that is there unfair or one that we put it this way mr chief justice we would content if the court were to conclude that with respect to substantial burden that it could assume a substantial burden but that the government has satisfied its burden under rif to show a compelling interest in that this is the least restrictive means of achieving that goal you watched now when up on this no answer but we're not giving up on it because we do think what we do think that discussion this morning is suggested that this is a hard question and it is important to us and that's why we're finding it on it and not giving up on so that's amendment where it the burden is of a certain cot now what and would you say well a kind where it arises out of the fact that we have a program that affects third parties in a big way ok we have the viet nam knees church of the escape ease in los angeles were so poor they have to meet in the basement of a house and the parking regulations stop their congregation from coming even they want to meet only on sunday think about that when we can put that easily into the context of third parties being hurt so they can't practice their religion so that when i can think of a lot of counterexamples but maybe you couple that with what we have in the tax cases and administrative widespread administrative rules the government has has leeway where third parties widespread administrative you see so i'm i'm i'm trying to get the thinking of the people who have thought about this which are you and  and the others here on what's the best way to treat that burden it's not hard to find in religious writing and that people when they go into society assume some burdens and i'm going to find totally up we're not urging you to state a comprehensive standard here that total then what do i do what i think i think we're urging a more incremental approach that recognizes that the principles articulated in lincoln bowen apply in a situation where the government is acting making arrangements with third parties in order to fill the regulatory gap that that has been created by the government granting an exemption to a religious entity could you talk could you address mr comments hypothetical  about where the the government would come into an unoccupied rome in the little sisters facilities not being used for anything they don't interfere at all they even pay rent and they come in there and they establish a title ten clinic and then distributing contraceptives on the little sisters property and there's no financial burden there's actually financial benefit to them is that different from the situation here and if so why yes we think that would trigger rigorous refer scrutiny to be a substantial burden the difference is that in that situation you're actually on their premises and in this situation and try to get back to what i was discussing with you mr chief justice aetna is it is a different entity from petitioners blue cross is a different entity from petitioners the government makes its arrangements with aetna or with blue cross and we make arrangements with aetna you know blue cross and other insurance companies in t p s to provide contraceptive coverage to other third parties the employees are you saying your brief you admit in your brief that at least in the case of the self insured plan the notice or the form or the notice becomes part of the plan this is their health insurance plan established under arrest and you are putting a new objectionable element into the plan isn't that correct i don't think that's quite right justice alito i think there's been some confusion about that on the petitioner side there are two separate notices that operate here in the self insured plan the first  notice that the employer provides to the government that's in a recent plan document but what that that what the legal effect of that document is to exempt the employer from any obligation to provide contraceptive coverage there is a second document different document that the government then sends to the third part the administrator that document is the document that has a legal effect that creates the obligation on the part of the third party administrator to provide the coverage so is not the case but the document that comes to us is an authorizing document that's in exempting document but it is it's their plan and you admit that you are putting something into their plan that they object to our knowledge of scales so i think difference between that and mr clements  find a substantial burden for for a third party administrators it's not true about the situation with insurance companies it's not true about church plans and so then it seems to me the question is whether switching from having a self insured third party administrator situation to an insurance company situation would whether that would be a substantial in the case of and if you're trying to have is that the insurance policy part of the plan is in the insurance insurance policy the way in which the and the employer provides the benefits that are available and yes and then and then the government makes an arrangement with the insurance company that operates in parallel to that plan and so but but but but it isn't through that plan it's in parallel to that plan so i think there's a significant difference there but with what is the government's interest in requiring requiring compliance by catholic charities of pittsburgh but totally exempting catholic charities of your so this gets to the question of the church exemption your honor and let me try to explain that i think it's helpful to understand how it came about the church you know when they initially h h s decided that it would create an exemption for churches and then when there were some back and forth regulatory proceedings petitioners participated in that created the exemption for churches and then the religious non profits came in and said well the exemption ought to be extended to us the government made a judgment that as a categorical matter it wasn't willing to exchange extending exemption to all religious non profits as was requested but it instead would use this accommodation which we thought was the best way that we could  their religious live in a different and more says as you say it's properly phrased in the briefing is the accommodation is the way in which the organizations comply with the mandate are three spector catholic charities of theory though they don't have to comply through the accommodation or any other way but our example the reason we drew the line is because we think and i think professor laycock speech was quite instructive on this point is that while there is no line is perfect and i'm sure this line isn't perfect and there's going to be some overlap between entities that maybe you think of or look closer to being on one side of the line and the other but the line is a valid line and it's a valid one largely for the reasons justice kennedy identified earlier because in that category religious non profits maybe some entities like the one your eyes identified that appear very close to energies that have an exemption but there are also going to be lots of other entities whose connection to that core religious mission is much more attenuated you have to draw the line is that it could you apply the same requirements you apply to the little sisters to the church energy itself so i think we could hear our yes under i think under i think we were it would be an appropriate accommodation and i think if we had the same compelling interest and we'd make the same now we tailored means argument but we have ourselves we've tried to be especially careful with houses of worship and that's a normal thing that governments do with respect to houses now would you understand the argument and we've said this in cases like yours centro and others that if you have a lot of exemptions it undermines your argument that this is such a compelling interest write and let me try to walk through this carefully because i do think it's important they've identified three first as grandfathered plans we've had a lengthy discussion about that i think i've tried to show you that that i don't think you can argue that that exemption undermines the government's compelling interest they claim that there's an exemption for employers who have few in the fifty employees but that's just wrong in fact there's no reason to think that virtually anybody  the cabinet in that category of employees of those small employers isn't getting contraceptive coverage as part of their regular health care from the regular doctors and let me explain why that is that there is no exemption from the contraceptive coverage requirement for that group proof of it is that several petitioners are in that group of fewer than fifty employees and they're asking for the and they're asking for the there has been there and they've raised the refrig claim here so and that's because  employers in that group provide coverage they have to meet the contraceptive cards requirements of employees get the coverage from their regular doctor as part of their regular health plan then also if your employer is not providing coverage in that group then you go on an exchange and then you purchase a policy on the exchange and that policy provides you with contraceptive coverage as part of your regular health plan from your regular doctor or you you if you are eligible to apply for medicaid and medicaid gives you contraceptive coverage as part of your regular health plan from your regular doctor and for the only use who have to buy the plans on the exchange because they work for a small employer and the employer doesn't offer health insurance does that arrangement frustrate the government's compelling interest no because in that circumstance you are the only option that that employee has is to buy an individual policy on the exchange and that individual policy will contain the contraceptive coverage from your doctor's bar b regular health care the difference with is with when somebody works for a grandfather plan for example that category or for a church those people are already getting insurance and so for them it is an obstacle because you're forcing them to purchase a second insurance policy and that really becomes a financial penalty for them because part of their compensation is of course the health insurance they're getting from their because the way in which this plan is structured way in which the combination is structured is that they are not to the employers or not to bear any financial burden for the contraceptive coverage that has to be provided without charging the employer and funds have to be segregated all activity has to be segregated so there is it's quite carefully designed to avoid the existence of any subsidy or spectrum and that and so we've talked about i mean if it's so easy to provide i free why can't they just get it through another plan well because then they've got to sign up for a second plan and pay for a second plan your honor and that's precisely the kind of obstacle that congress is trying to ensure did not exist when it passed the preventive services provision of the statute the whole idea here is to ensure that these employees get the health care get discovered get this care from their regular doctor as part of their regular health care without these added obstacles and the need to go out and sign up for another plan and find the doctors who are going to provide coverage on that plan all of those are precisely the kinds of obstacles that congress is trying to eliminate because that although it comes down to a question of who has to do the paperwork if it's the employee that has to do it that's  no good if it's the religious organization that has to do it that's ok i think it's a lot more than that your honor you've got to go out and find that you've got to go out and find the separate even to know they're on the exchanges right which but you know put yourself in the position of th exchanges so it's a full to the exchanges require full service health insurance policies with minimum coverage is that are set forth that are very comprehensive that is that true or creating a new program true with respect to every law you're on the way to tional objections work as you might have to change current law and but in this circumstance i think you don't need to get to that question of whether there is an obligation to change current law because even if you did have a second contraceptive only policy available on an exchange that would be precisely the kind of barrier that congress is trying to eliminate you go after two policies instead of one  that creates the disincentive so a lot of the women employees i'm certain will reach the conclusion that well you know i got this coverage over no no no but i guess that substantiates the point i was trying to make that it's a question of who does the paperwork who if you said yes it is a hassle to go to the exchange although it's you know you you know and heard about how easy it is you go to the exchange you get or you allow your infrastructure is petitioners have said to be used as the vehicle proof for apartment and i'm not saying it comes out one way or another from your perspective i'm just trying to focus on exactly what is at issue right a question whether you why want the employee to sign a paper or you want the little sisters to sign a paper in the one case it's an administrative burden as you said the other case it's a violation of a basic principle of faith no i think that the point your honor is that the congress and the institute of medicine x that congress made a judgment here that this does impose a very significant obstacle of these kinds of requirements that result in significantly less use of medically necessary services and it's not it doesn't just come down to is this right is it that the reason i get that you don't want to have women to have to ask for the coverage is because that's numbers of women will quite a few who have religious objections won't and then there will be that middle set of people who are inertia and since they are inertia bound we can't say so a lot because for people who don't object religiously if they get the contraceptives that lowers the cost of health coverage later on so the government has an interest in that and therefore there is an interest of some kind in not allowing a system in not having a system where the inertia bound have to take initiative if i got that right i think that the right do i have the other part right which is this is not hijacking because there is a federal regulation that says the infrastructure of the insurers contraceptive related plan belongs to the insurer not to the person who buys the insurance am i correct that's all that's all correct your honor and that's why when i say when we make an arrangement with at no or blue cross we are not making an arrangement with petitioners or anything that petitioners on could and in the executive deal with the problem of what's available on the exchanges at the present time in this way of policies are available that provide comprehensive coverage for the executives say as a matter of our enforcement discretion we are not going to take any action against insurers who offer contraceptive only policies and in fact we are going to subsidize those insurers at one don't think it would be put even if it were it presents the same problem of creating the obstacle which creates the inertia problem which undermines the compelling interest which is not just a compelling interest of the institute of medicine and h h s but of congress itself because the whole point of the statutory provision here is that this is supposed to be part of you while you're saying you're saying it would be you know adequate so why would it be not something that you could do in accordance with your understanding of executive power well i don't  paperwork that if you're woman employee you go to your regular doctor you say you have a medical condition maybe i can and that puts me at risk of being pregnant or and i just want contraceptive coverage or i need contraception to treat a medical condition and the way this works now if the if if the river exemption is granted here is that the doctor has to say i cannot help like that's the interest on one side of the equation what you understand to be the interest on the other side of the equation i understand the interest to be avoiding complicity in what they consider to be sin we take that very seriously in what way in which way does refer caught up in analyzing that balance i think refrig cuts in this situation quite decisively in favor of the government here because the interests are compelling and the and as we've tried to explain none of the alternatives at the petitioners have proposed have come anywhere close to being equally effective in ensuring that women get this coverage and so the and the obstacles they get told by your regular doctor i can't help you i can't even counsel you about this in numerous of the petitions a file declaration saying that our our insurance will not cover even any counseling about contraception so you've got to go out and find another doctor and then you've got to and you've got to find a way to pay for that doctor and then you've got to find a way to pay for the contraceptive coverage so a whole host of very serious obstacles it's not just about signing a form and that gets to the heart of the problem why it was some of the doctors so it's a home the woman would go for other services under the plan would be unwilling to provide those services under a plan under a separate plan that covers contraceptives what do you make that assumption that would be a happenstance somebody's going to offer that separate plan and that separate plan has got to and then the death of the doctor that she goes to as a regular doctor has to be the same has to be under the same plan there's no reason to think the general  that and the reviews the hijack analogy has been mentioned can you explain why you don't see this as a hijacking right i think what we've tried to do with the way i've tried to explain that your honor is that we have tried and i think the court recognise this hobby lobby that the goal of this is to exempt the employer from providing the contraceptive coverage to exempt them and to provide a separate means through separate funds without their involvement and therefore it's not hijacking and i'd like to do if i could i want to make one point even thing you know follow up on your answer before you do the contraceptive services would be provided pursuant to what plan you're hired by one of the religious organizations you get a brochure or package with all your insurance coverage and you know everything it is and where would the contraceptive services be listed it won't be in that brochure it can't be in that brochure there's got to be a separate communication from the insurance company to the employee telling employer getting the separately from us that's how it works now there mr francisco i think earlier said if it offers a separate policy giving insurance that he thought that that would be an accurate and adequate accommodation and so i think that that raises all the problems identified and i meant i meant he says generally if under some other policy offers it on the exchange to women who might want to go on the exchange and buy that policy that's ok if they would if that's the way what they do what's different from that from what happens well i think there woman doesn't have to apply for and pay separately i think or so i think if it's a separate policy are going to have to apply and pay separately so whole separately sheen i do want to make one point about the notice because i and i know my from the other side raised the idea of notice that it's not just using the plan but the notice they provide that notice argument i think can't constitute a substantial burden because it's entirely derivative of the objection to us setting up this third party arrangement and  coleman told you that this morning because he said if the government didn't take this step of providing coverage we would be happy to provide any information they want on a form and so i think that what that tells you is that the objection here the locus of the the that is the arrangement to provide the separate coverage and not to notice proceed on its own terms on objection before you sit down general volley can i just ask you this informational question about this particular situation of the little sisters their regular third party administrator also will not provide has said it will not provide the coverage if even if they were to comply with the the form of the notice requirement and therefore you say they probably cannot be there's probably no way under risk to obtain contraceptive coverage for their employees unless you can find another third party administrator that you could deal with there in that situation with a little sister still be subject to fines for failing to comply you know we don't think so but if i could just closing what i'd asked the court to do is to weigh the alternative so they've been put before you here in this case on the one side you've got a serious thoughtful effort to respect petitioners religious beliefs by creating system that allows them to exempt themselves from the requirement in a straightforward manner and that protects the fundamental rights and liberties and dignity of the employer of their employees many of whom may not share their would live just beliefs about contraception on the other side of the scale what you've got is a demand that those rights of those employees who may not share petitions beliefs be extinguished extinguished until such time as congress creates an axe a different program that will work wire a separate one off jerry rigged channel for them to provide obtain contraceptive coverage that will impose precisely the burdens that congress said in the relevant statutory provision not unacceptable for all preventive services well that's one way of characterizing what's involved here but you could also it can also be said that and it is true that this is a case in which a great way of religious groups is not just catholics and baptists of evangelicals by orthodox jews muslim groups the church of jesus christ of latter day saints and indian tribe the church of look to me babu i have said that this presents an unprecedented threat to religious liberty in this country and what would you say to that what i would say to that your honor is that i think essentially what a courts of appeals have said which is that refreshing requires a sensible balance and sensible balance society like ours in which people of every faith earth live and work side by side and the government is going to administer rules that are fair to everyone the accommodation accommodation achieves that balance petitioners position is very very far from that balance and therefore the courts of appeal should be affirmed thank you thank you mr clemente for minutes thank you mr chief justice a few points in rebuttal i'd like to start with the university's justice kennedy because i don't think it's the case that just because congress exempts churches that it has to exempt the universities what it needs though is a rationale for drawing the line now my friend on the other side says the line doesn't have to be perfect well under compelling interest and least restrictive alternatives it at least has to be pretty good and the line that they've drawn here is absurd and i would urge you to look at the by the dominican sisters and authored by a former head of the tax division because it explains the wind they've picked using sixty thirty three of the tax code makes no sense that's an informative filing requirement but there's no substantive difference if my clients filed the form they get the same tax exempt status as the church is the only difference in that provision is whether you file the form the substantive treatment is exactly the same to use that line to draw a distinction between churches and justice kennedy was that the exempt organizations would be more likely to hire coreligionists and therefore less likely to have employees who would use the products my clients equally enjoy the title seven exemption which gives them the right to hire coreligionists so their original rationale applies equally to my clients you have to draw sensible line now as to the exemptions i mean i will respectfully disagree with professor la a tell us you're going to claim an exemption because not every church is religious has the same religious tenets so is that what you would have preferred is that the the sort of incentive you want to put out there is that the message you're giving which is there's lots of rules that apply differently to churches because we recognize they are special let me try to answer but others may be special like them but it's clear to tell what a church is let me answer both questions together first of all the exemptions not just limited to church as it applies to religious orders and if my clients were just stuck to their knitting and not help the elderly poor they could qualify but to answer both of these questions together not all exemptions are created equal and professor la k is a great scholar but even he admitted he didn't understand the details of this particular plane he didn't get into that he left it at parties and i think he subsequently said that if there really was a requirement for these entities to contract and there is then even he would recognise there's a substantial burden but the important point is not all exemptions are created equal if you create an exemption for small employers that's a rational exercise of enforcement discretion if you create an exemption for take the central case if the exemption for payout he had been for a skin tool five substance that was less dangerous maybe the government would have one their problem there was that the government had already exempted the sacramental use of pay ot a schedule one substance so of course they had a hard time arguing why they couldn't provide an exemption for a different schedule one substance all of these exemptions have to be treated the same just as private there's no excuse there's no other way than to do the hard work of looking at the exemptions and seeing whether  sense one of the cases that congress clearly wanted to embrace in referral was yoder now you are with a relatively hard case because it basically were no exemptions if the state of wisconsin had already provided an exemption for the mennonites and it already provided an exemption for the students upstate where the schools are further apart yoder would have been an easy easy case you can't make an exemption for all these grandfather plans and please it's not that this is a sunset provision if you look at joint appendix page one fifty six they link the grandfather to the idea that if you like your plan you can keep it so that's not going away just in closing my clients would love to be a conscientious objector but the government insists that they be a conscientious collaborator there is no such thing thank thank you console case is submitted