we'll hear argument this morning in consolidated cases number thirteen three fifty four hundred sebelius secretary of health and human services versus hobby lobby stores and thirty three five six co mr comment mr chief justice and may it please the court when a federal government agency compelled employers to provide something as religiously sensitive as contraception it knew that free exercise in refer claims would soon follow in particular the agency itself provided exemptions in accommodations for the religious exercise of a subset your claim limited to sensitive materials like contraceptives or does it include items like blood transfusion basic c for some religions products made of poor is any claim under your theory that has a religious basis could an employer preclude the use of those items as well well just a sort of i or the first step in the analysis would be to ask whether or not there's a substantial burden on religious exercise i do think this case is in a sense easier than most of the examples that you brought up because here's one where it's so religiously sensitive so fraught with religious controversy that the agency itself provides a certain number of exemptions in accommodations so that's one way i think that the you dress the first step with the question could i mean to state one of the things that fund that's nations for her employee is what what happens then well if we assume we get past substantial burden step of the analysis then the next step of the analysis is the compelling interest in least restrictive alternatives analysis not every case would have to be in a wise on its own i do think in the context of vaccinations the government may have a stronger compelling interest than it does in this context because there are notions of herd immunity and the like that give the government a particularly compelling interest in trying to maximize blood transfuse again each one of these cases i think would have to be evaluated on its own and apply the compelling interest least restrictive alternatives have in the substantial really for every medical treatment and justice sotomayor is quite right that there are quite a number of medical treatments that different religious groups object to so one religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform what justice kagan nothing could be clear then when unnecessary and of course in a variety of contexts congress may proceed on a belt and suspenders matters so i think there's really two different questions one is when congress passed referral was referred just done with creating other exemptions and i think the answer to that i no but i think the question that justice kagan's question brought up is what is congress evident and did congress specifically consider whether riffle would apply across the board to all the provisions of the eighteen us c rather all the provisions of the united states code in congress could not have been clear that it was passing the statute that it wanted to apply to all preexisting statutes and all subsequent statutes in less congress specifically provided otherwise you were beginning by giving us  framework for your argument do i think of this is a statutory case of course the first amendment is is on the stage at some point here but i take it you can prevail just on the question of statutory interpretation and if that is so are there any statutory rules that work in your favor that is to say avoiding a constitutional question or what how do we think about this case primarily the statutory  obviously one of my clients just before you right now free exercise claim and my other client has a free exercise claim that's live in the lower courts so those issues are preserved but i think as your question points out this court really first and foremost can decide this on the basis of the federal statute and the ash wonder principles of constitutional avoidance seem like they would be only a political to the cut at the courts consideration of that question and then of course the normal principles of statutory construction would serve we point you to the answer to the first objection the government raises which is due process include for profit corporation and mr clement isn't this a special kind of statute because this is a statute that specifically refers back to a body of constitutional law it basically says we want to get right back to the place that we were with respect to religious claims before employment division the smith and so we have a it's not you know it's a statute that directs us to a body of constitutional law that body of constitutional law is i think very different from the one you portray in your brief it suggests that accommodations should be made sometimes but rarely and subject to assist to a balance and analysis not a compelling interest standard in the way we would use it for say race discrimination so you know what's what's the response to that well first justice kagan let me take a little bit of an issue with your premise and let me try to be responsive to your question anyways after i do that i would like to take issue with your premise is that when congress first passed the statute reffer it talked about free exercise it's defined in the court's cases and then at the time that it passed which is a later statute it actually confronted some lower court cases that had limited riffraff and tried to impose a central body requirement and the congress didn't want that it would take all the baggage of the pre smith free exercise cases so it actually amended the statute to broaden it so it now protects tracked the the pre employment division versus smith law that is to say the compelling state interest test in the prior cases was never accompanied by a least restrictive alternative requirement that was an invention of this of this law i think that's fair justice scalia one of the things that you run into if you try to sort of get at this statute the way that justice kagan is suggesting is that not everybody exactly agreed as to what the pre smith case law was you describe the priest myth case law in your opinion in a certain way justice o'connor described the pre smith case law in another way so it's a little bit difficult to try to say as justice kagan question would suggest that rather than just apply the statute as written we should really sort of just go back and apply pre smith laws if well it is applying the statute as written the statute as written this is not a question of legislative history the statute as written points back to priests meth l it says that's what we mean well you're right justice kagan it in the purpose part of the statute it says what we mean to do here is basically restore the pre smith law but it also accompanies that purpose statute with operative language and the operative language which i think this should apply as justice scalia suggest applies broadly to any exercise of religion by any person and then suggest that the relevant test a substantial burden with the burden on my client as to the substantial burden part of the test and then this providers to deny coverage on the basis of religious beliefs of moral convictions it was specifically geared to secular employers and insurance providers and that that was ginsburg i would suggest to the contrary the reason that there was such unanimity behind refer in the first place is that efforts to limit it to just certain subclasses subsets of religious freedom claims were rejected and sort of everybody in congress got together and said all right you have some claims you actually want to be vindicated you have some claims you want to be vindicated will vindicate all of them and if we're going to look at any legislative history as shedding light on this then i would suggest you look at professor lake cox brief which goes into great detail about the legislative debates involved in the lead up openly to the passage of or loop and when congress was trying to pass a broader statute the r l p a the religious liberty protection act the issue of the statutes application and restore its application to for profit corporations with squarely put it issue by the navl or amendment and that amendment was rejected and the house report that that demonstrates the rejection of that amendment could not be clear that they understood that for profit corporations would be covered now in fairness what they understood is that we were probably talking about in the real world it relatively small set of corporations like an incorporated oh sure market or kosher deli of the kind had before in the crown kosher case and so i think it's you know we can talk about the extent and how you'd apply these principles to exxon but i think that's just something that's not going to happen in the real world it is no accident that the claims that you have before you in these cases are brought by small closely held corporations that have firmly held religious beliefs that again mr clement as justice ginsburg said this was a very uncontroversial law and your understanding of this law your interpretation of it w essentially subject the entire u s code to the highest test in constitutional law to a compelling interest standard so another employer comes in and that employer says i have a religious objection to sex discrimination laws and then another employer comes and i have an religious objection to minimum wage laws and then another family leave and then another child labor laws and all of that is subject to the exact same test which you say is this on believ high test the compelling interest standard with the least restrictive alternative well i don't say that i think congress said that but to be as responsive as i can to your question the parade of horribles that the government offers you ought to sound familiar because if you look at that parade of horribles social security minimum wage discrimination laws compelled vaccination every item on that list was included in justice scalia's opinion for the court and smith and justice o'connor responded to that their separate opinion and she said look you gotta trust the courts just because free exercise claims are being brought doesn't mean that the courts can't separate the sheep from the goats well whatever was she had an understanding of how the court worked priests meth that was a kind of understanding which was we did it a balance and we looked at the government's interests we took those very seriously especially to the extent that there was harm to identifiable third parties and that it fell on an identifiable third party that was basically you could not get an accommodation for that kind of harm which she said and whatever the merits of it is a matter of a constitutional debate isn't relative what i think is relevant is the congress clearly preferred one side of that debate and thought courts could handle this so then the question becomes how do courts actually apply this test and i don't think applying the test to recognise this case where i think the government has an incredibly weak case a compelling interest and least restrictive alternatives which they almost don't want to talk about at all is going to endanger any other statutes and if i could talk about specific i ask you this mr coleman in all the years since riffraff has been on the books have any of these claims involving minimum wage for example been bought and have they succeeded justice alito very few of these claims have been brought very few have succeeded and that's not withstanding the fact that all of these statutes we're talking about apply to employers generally and it happened in one of those claims have been brought or they haven't succeeded notwithstanding the fact that the government concedes that sole proprietorships and partnerships and nonprofit corporations are all protected by river now millions of americans are employed by proprietorships partnerships and perform then you are arguing for in this case that if you aren't in meant were adopted and there was a strict scrutiny standard of the kind that usually applies and of these restrictive alternative requirement then you would see religious object s come out of the woodwork with respect to all of these laws and because you say that there and i think this is absolutely right when you say it that you cannot test the centrale of the of a belief to a religion you cannot t est the sincerity of religion i think a court would be you know their their their hands would be banned when faced with all these challenges if if your standard applies well justice kagan a couple of thoughts first of all i mean it's not like this court has never had a referee clase case that applied the standard on the merits and in the center a case this court applied something that very much felt to the government at the time as being strict scrutiny but it was a two separate questions there are questions about how to apply the test if it's a political in a particular case and i think o centro is the starting place for guidance on that your question also brings up a separate question about the coverage of the statute and it's to that i think the place to start is the statute itself which broadly provides coverage is to persons that is not an incidental term it's a term that picks up additional context through the dictionary act and specifically applies to all corporations to join but where the cases that show that a corporation exercises huge will just assume i or those those cases i mean i'd start with cases like look who me or oath center which all involve corporations and nobody thought it was particularly problematic there that the point of before the court were artificial entities and i suppose you could take they were really arguing about things that affect that their membership not them as a corporate entity well i'm not sure that you can so easily divide the two and we can talk about how it is with corporations generally you understand how the corporation has certain beliefs or certain intent see enter requirement the courts every day deal with issues of trying to figure out what kind of intent or motivation a silver print entity has the dissent in this case in the tenth circuit case says how do we determine when a corporation has that belief who  says the majority of shareholders the corporate officers the is it fifty one percent what happens to the minority and how much of the business has to be dedicated to religion five percent ten percent ninety percent well let's assume not a business like yours you picked great plaintiffs but let's assume let's assume that just a business that sells five percent of religious books doesn't play christmas music doesn't give off works on sunday you know there's nothing else religiously right and just sort of my i think the way to approach those cases would be the same basic way you approach other questions of corporate intent or corporate motivation you look to the governance doctor and if any of this is put a shoe and i think that's really a critical question which is alternately i think this line of questioning goes to a question of sincerity and if some large corporation asserts some claim that's going to save them lots of money i would think that the government in those kind of case is really going to resist the sincerity piece of the analysis in this kind of st religious exemption a belief in how substantial burden might be right this court has not question that the thomas case i think puts this common ground with the idea that you don't really second guess the person's  person's belief but you can contest sincerity it is there is case law on this you know you have people who are arrested in possession of large quantities of marijuana and they assert that they belong to the church of marijuana and those cases do get dedicated and they get rejected and you can there's a lot of different ways to there is a is there a different way of looking at it the leeway in us versus leave we said when followers or particular say in church or commercial activity as a matter of choice the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statues story schemes which are binding on others in that activity so isn't that really the answer that we've never consider a for profit corporation as exercising religion well let me let me take on leave first and i mean that's obviously the two lines of lead that are the government's favorite two lines and leave but at least starts with a substantial burden inquiry which is where most of the sincerity questions go and leave definitely says that there is a sincere religious belief in a substantial burden on religious exercise so the two sentences that you're quoting come in the compelling interest analysis of the case and i think le does stand for the proposition that in the tax concept context it's going to be very hard for somebody to bring a claim that satisfies even the demanding compelling letter that we get sick of an interesting question because of the breach some both sides here are written as if the penalty for not having a health insurance policy that covers contraceptives is at issue but isn't there another choice nobody talks about which is paying the tax which is a lot less than a pill and penalty and a lot less then than the cost of health insurance that all these employers could choose not to give health insurance and pay not that high a penalty  nothing higher tax well just to put this in concrete terms for hobby lobby for example the choice is between paying a five hundred four hundred seventy five million dollars per year penalty and paying a twenty six million no i don't want your that is the same thing mr clement there's one penalty that is if the employer continues to provide health insurance without this art of a bridge but hobby lobby could choose not to provide health insurance at all and in that case hobby lobby would pay two thousand dollars per employee which is less than hobby lobby probably pays to provide insurance to its employees so there's a choice here it's not even a penalty by in the language of the statute it's a payment is a choice and so the question is why is there a substantial burden at all well just to be clear we were talking about the same things to the option the choice is between paying a four hundred seventy five million dollar your penalty and a twenty six million dollars a year penalty that's what hobby lobby faces so that thousand in paying two thousand dollars per employee per year if the lobby does not destroy six million dollars hobby lobby is paying something right now for the for the coverage it's less than what hobby lobby is paying for the coverage there are employers all over the united states that are doing this voluntarily because they think that it's less  i thought the part of the religious commitment of the owners was to provide health care for its employees that is true mr chief justice it is also true that this will to get out if they want to do that they can just pay a greater salary and let the employees go in on the exchange exactly which is by the way why comparing the two thousand dollars penalty to the cost of the health care is a it's not an old about and alter it's called the tax and it's well abraded and it's up and it has been treated for some purposes as a penalty and i think for this purposes it certainly feels punitive and if i could finish the thought about why it's a cost comparison the two thousand penalty to the cost of the health insurance is that it's going to very much hurt hobby lobby of all the sudden it doesn't provide health care to its employees and in order to compensate for that it would have to increase the wages and i think it would be worse off as a result of this but if i could also say that that's right let's say that they have to increase the wages a little bit i mean still we're talking about pretty equivalent numbers maybe it's a little bit last maybe it's a little bit more but this is not the kind of thing that's going to drive a person out of business it's not prohibitive it's like the thing that we talked about in where we said you know maybe if the store can't stay open seven days a week it makes a little bit less money but so be it is what we said no i actually think what it's like your honor with all due respect it's like a five dollar penalty enforcing the prohibition in yoder and what this court say is it's one thing if you don't have a direct government prohibition on a religious exercise a mandate that somebody do something that violates their religion in those cases which is like sherbert and it's like brown felt then you have to look at the substantial pressure and it becomes a little bit more of a lucic you see analysis but when you have a government law that specifically says you must do something that violates your religion and it's enforced with a penalty and with all due respect i think two thousand dollars se clement it's not saying you must do something that violates your religion it's giving you a choice you can do this thing when you are if this thing violates your religion you can do another thing and that other thing is approximately the same price as the thing that you don't want to do it i don't think it would be the same price at the end of the day i'd also like to point out how the school of thought should one be the same price at the end the day if they deny health insurance they're going to have to raise wages if they're go employees absolutely be sure to say that you know it comes out of nowhere absolutely your honor and this by the way this two thousand dollars penalty it's very much a double edged sword for the government but why is it going to why why is that a problem but let's let's assume that the cost of providing insurance is roughly equivalent to the two thousand dollars penalty how how is that how is the employer heard you can just raise the wages  but the average price of providing insurance for a single person is four thousand dollars and scroll thousand for a family for a family so the two thousand and ten acts that's what it's called is to help the government provide subsidies to people on the exchange that don't have employer insurance so it's a tax because it's supply it is to do exactly what your client wants to get the government to contraceptives not the insurance companies here's a problem with this way of looking at it which is to say whatever it cost per employee to get this this this health care that's something that right now hobby lobby is paying whatever it's paying them it's it's you know imputed into that is the idea that they're getting their wage and they're getting health care insurance if they take away the health care insurance they are going to have to increase the wages to make up for that and they're going to have to pay the two thousand dollars penalty on top of it plus they're going to have to violate their own interest which is we actually we believe it's important to provide our employees with qualifying health the last is important but just assume hypothetically that it's a war that or the emperor's religious object just on the financial standpoint can we assume that is hypothetical then what would your case i think my case would be that in that case the government might be able to sort of support itself on the compelling interest i think there would still be a substantial burden on their exercise but again this all turns on issues that the government hasn't put an issue this case hasn't been litigated on this particular theory so i think i'd love to have the opportunity to show how by not providing health insurance it would have a huge burden on my client in their ability to attract workers and that in fact would cost them much more out of pocket but that's not been the  complaints you go back to your briefs you know it's part of their religious beliefs that both the hans and the green say i think it's actually important that mr comment you're not saying are you that their religious beliefs mandate them to provide health care i thought that you were never making that claim i was i didn't have to make that claim in the course of this litigation what i'm pointing out though is for purposes of the substantial burden analysis it is perfectly appropriate to take into account that the two thousand the twenty six million dollars in fines they would pay would not be the only thing that they would lose out if they are in that corner of the dilemma they would also lose out all the additional wages they would have to pay and they would be in this position of not offering health care which is something they believes important for their religion not as well you know i'm sure they seem like very good employers and i'm sure they want to be good employers but again that's a different thing than saying that their religious beliefs mandate them to provide health insurance because here congress has said that the health insurance that they're providing is not adequate it's not the full package with respect what congress has said is that this kind of plan is not appropriate for a non grandfathered plan but if we're going to talk about the government's compelling interests here which i think it's got to be part of the analysis then i think the grandfathered provisions of this statute really are devastating for the government's argument that it has a compelling interest when the government pursues compelling interest it demands immediate compliance it doesn't say get around to it whenever it's convenient i can imagine congress passing title seven and saying stop discriminating on the basis of race unless of course you have a preexisting policy that discriminates on the basis of race and then you can keep it as long as you like it's fundamentally inconsistent with a compelling interest  of that example you know initial title seven did not apply to any employers with fewer than twenty five employees and then gradually congress brought the number down because congress realized that there were going to be transition issues and that some time was needed to make sure that the compelling interest you know should be applied uniformly across all employers here's respectfully why i don't think that that works which is i think the question whenever there are exemptions in a statute is to ask yourself do the exemptions undermine the compelling interest that the government asserts there's nothing inconsistent with an interest in prohibiting employment discrimination to say we're going to focus on the people who actually employ the most people and therefore can engage in the most discrimination it's quite a different matter and i don't think anybody would think the congress would pass a title seven that said hey as long as you have a preexisting discriminatory policy you're allowed to keep it that has assuming you like your church is the one of the attorneys below on behalf of your clients admitted that the grandfathered policies weren't going to be around very long because any change to an existing policy and he said these changes happen on a yearly basis and we already know from the government statistics that it's up to forty percent now have grandfathered out your own client changed its policy and that's why it's not grandfathered and he changed it to drop contraceptives it was covering well and so my point is since w transitions grandfathered exemption and one that everybody knows will have to change because premiums by definition will change or co pays will change something's going to change it's a very short transition period since when does that prove the need is not compelling with all due respect it's not necessarily a very short transition period and your your references to co pays and premiums is precisely on point because the government through its regulations has allowed grandfather plans to make changes to the co pays as long as they're indexed to medical inflation and if you have a transition period that's just there for a nanosecond you don't bother indexing it to medical inflation so this is a grandfather provision that's going to be around for multiple years and by the government's own numbers tens of millions of employees are not getting this mandated coverage as a result of the grandfather provision and even if we can project forward ten years to when maybe there are only be a handful of grandfathered plans even at that point you would still have the same problem that the government would have which is it has to make an argument for a compelling interest just before your time start to go to fat how would you suggest that we think about their position on the rights of the of the employees and you can have hypotheticals about the employer makes them want to make them wear burkas and so forth that's not in this case but in a way the employees are in a position where the government through its health care plan is this is is under your view is allowing the employer to put the employee in a disadvantageous position the employee may not agree with these religious religious beliefs belief and the employer with a religious belief just trump is that the way it works no it's not just the way it works just as can it actually  afford things i'd like to say about that if it's possible one is i think the first thing about third party burdens is you have to ask where are they coming from and if third party burdens are coming from an employer i mean employer right now can put some burden on their rights because they have to listen to religious music or whatever that's not as serious as a burden that's coming directly from the government so that's one principle to think about another principle and this is more of a detail but i think it's important is that to the extent you take into account third party burdens you take those into account in the compelling interest part of the the government has an argument that somehow third party interests go into the substantial burden part of the analysis where we bear the burden and we don't think that's right at all but mr clinton money he made and the one thing that has not been mention to be balanced and you have to take into account other significant right but that actually brings me to my third point which is those other significant interest to carry the most weight have to be independent of the very statute that said issue in the case that the party seeks an exemption from so if you think about the kaldor case there the court was concerned with the third party burdens on say an employee who had a seniority right to take the weekend saw so he or she had an independent right to take the weekend off and the government policy was coming in and displacing this i'm not sure that that squares with lee the the statute created a right to social security and there the court said you can't to priv employees of the statutory right because of your religious beliefs so is contrary to the point you're making there too i have to respectfully disagree because if you remember the facts of l by the employer but by the employee so the particular employees there don't have a beef with what he's doing at all and i think when they're talking about third party burdens they're what the courts really talking about is the the burdens of everybody else who contributes into a system where uniformity to use the courts w was indispensable and so if i could though i think just to illustrate why it's sort of double counting to count the mandated issue here as being what gives the burden to the third party or the benefit of the third party imagine to convert to hypotheticals one is  passes a statute and says i have to destroy all of my cooks including my bibles another statue congress comes in and say i have to give all of my books including all of my bibles to you now in the second case i suppose you could say that  somehow gets rid of your statutory entitlement to my bibles but i don't think since it's the very benefit that we're talking about that's at issue there i don't think that really is double counting and i don't think those two hypothetical statutes should be analyzed any differently the other thing though about burdens and i think it should go to the fourth point that should go and i mean going into meant isn't that just a way of saying that you think that this isn't a good statute because it asks one person to subsidize another person but congress has made a judgment and congress has given a statutory in title meant and that entitlement is to women and includes contraceptive coverage and when the employer says no i don't want to give that that woman is quite directly quite tangibly harmed justice kagan i think you could say the same thing about my bible hypothetical but i do have one last thing to say about burdens and i do think when you think about impacts on third parties not all of these burdens are created equal and that too i think is borne out in this court's cases and the most relevant factor is is there some alternative way for the government to ameliorate the burden and i think about two types of kind of accommodations if you will get sort of title seven with a very narrow accommodation and then you have conscience clauses that allow medical providers including for profit medical providers not to provide abortions now each of those has a burden on third parties but i would respectfully suggest they're different in the case of the employee who's been subject to racial discrimination even if they can get another job that way szell discrimination is a unique injury to them that you can't remedy unless you tell the employer don't discriminate on the basis of race now in the context of the conscience clause if a woman can't get an abortion from her preferred provider that's surely a significant burden on her but we don't view that as trumping the conscience clause because she can get the abortion through another mechanism here as your question rightfully highlights all we're really talking about is who's going to pay for a subsidy that the government prefer this is not about access to the contraception it's about who's going to pay for the government's preferred well i think that's a fair point justice ginsburg and the government's own accommodations where they offer him to religious groups and religious employers like nonprofit hospitals also applies to whatever the religious beliefs of that provider  extend all twenty then the exemptions apply to all twenty if they have only extended for them the exemption applies to all four are there ways of accommodating the interests of women who may want these particular drugs or devices without imposing a substantial burden on the employer has a religious objection to it there are ample less restrictive alternatives are and i think they all flow from this impact that this is ultimately about who's going to sort of turn it is was that you're asking the government to incur with a person to is there isn't an alternative that doesn't put a cost on someone else well it's funny about this particular mandate because the government's position is this is actually a cost free mandate that whatever you pay out in contraceptions you're going to make up and not having to pay for other coverages and so one alternative one less restrictive alternative is what's done in the accommodation for nonprofit employers like hospitals where basically they tell the insurance carrier or the plan administer that you pick up the cost for this and then the cost neutral from you but i don't think there's anything sort of sacrosanct if you will about having the government pay for its preferred subsidy as a less restrictive alternative and that's essentially what the government does for those employees who have employers under general mr chief justice and made please the court the touchstone for resolving this case is the principle justice jackson articulated in prince free massachusetts as he said limitations which of necessity bound religious freedom begin to operate whenever activities begin to affect or collide with the liberties of others or of the public and here as to that principle is what makes possible the harmonious functioning of a society like ours in which people of every faith live and work side by side that that's a statement that is inconsistent with reference to the whole point of refresh is that congress wanted to provide exceptions for the religious views of particular including proprietors individuals no mr chief justice i don't think so at all in fact that although it was of course i was referring to justice jackson's words for their wisdom because it wasn't the opinion of a court but  reason you cited is the idea that you don't have imposed on the basis of religious beliefs exemptions or limitations and it seems to me that was the whole point of reference to tell  courts that that is exactly what you should do and less than the exception satisfies the strict scrutiny well as i think it well the less it satisfies the the pre smith standards under the establishment clause but i do cutter it's not it's that when you are analyzing what is required under the court must take account of the way in which the the requested accommodation will affect the rights and interests of third wasn't your argument that providing the accommodation that's requested here would violate the establishment clause but it's not it's not our argument it would violate the establishment clause but it is our argument that you in any riff or case including this one you have to consider the impact on third parties because otherwise you will be skating on thin constitutional ice and so justice kennedy you asked about principles that surround statutory construction of voidness is one of them and that was why the court unan under is is that part of the compelling state interest requirement or or substantial burden requirement where where is it in reference and i think the answer is that it could inform all every operative provision  what the court what the congress said and refrain in explaining how the compelling interest test was to work was that it was to strike a sensible balance between claims for religious liberty and governmental interests and of course levy is one of the pre smith cases that provides the governing one i would submit it is really the only case from this court in which a request for an exemption under the free exercise clause had the effect of extinguishing a statutorily guaranteed benefit because in levy had the employer gotten the exemption from providing social security the consequence would have been that the employees would have been disqualified from receiving social security benefits that wasn't the basis  for denying the claim the basis was that the government has to run a uniform system that applies to everybody this and you can argue that here because the government has made a lot of exception i say first of all i disagree with respect one of the points that the court made in lee was that granting the exemption from social security taxes to employ it to an employer operates to employ those employers religious faith on the employees it was one of the grounds of decision now but turning to i would like to address these reffer claims because they're for profit corporations you argue that they camps that's correct now why is that is it is it your position that there is something about the corporate form per se that is inconsistent with a free exercise claim no because obviously churches can bring all right but is it your argument that there's something about engaging in a for profit activity that is inconsistent with a free exercise claim yes and if i could walk through the money if you don't mind just walk through the analysis   endorsed by one of the lower courts in this case that for profit corporations must do nothing but maximize profits they cannot have other aims no noting religious aims no but here's here's how we'd look at it a the the activity and when you have an individual you you have an individual it's a person whether it was a merchant that was a corporation or not was irrelevant it was that the individual was was an individual making a profit running a business for a profit and that was the point of justice alito is question which i think you understood and i did try to answer yes but i but let me say i think the relevant question here is what the congress think it was doing in one thousand nine hundred three and i think the answer to that has to be informed you know we understand the dictionary act provides a broad definition of person but the dictionary act doesn't define exercise religion and the opera statutory language is exercised persons exercise of religion and so you can't look through the a reference to the first amendment isn't that right yes but it but but the difference there was to say that didn't want courts to get involved in the entangling enterprise of deciding what was a central belief or says what it says free exercise and didn't also adopt that say the term religious exercise includes any exercise and yes includes any exercise or religion but it doesn't define what that is it just says you don't draw a line between central audience something that may now but there's another provision that says that this chapter shall be construed in favor of a broad protection of religious exercise to the maximum extent permitted by the terms of this chapter and the constitution right and it but with return with respect to what exercise religion means it said don't draw line between centrale ity and non central ity he didn't go beyond that and tell you what it means and what refrig toshi to look to who is free smith case law and in the entire history of this country there is not a single case in which a for profit corporation was granted an exemption not a single case in which he was denied an exemption either oh you're saying well there are no leaves that will see was certainly a case in which a for profit enterprise was denied any exemption brown felt was such a case gallagher was such a case not only ground that it was a for profit enterprise there's not a single case which says that a for profit enterprise cannot make a freedom of religion claim is that there's not a single case right holding that except that in league it was critical to the courts analysis that the that the that mr lee and his business had chosen to enter the commercial sphere isn't that a merits question general i mean i totally understand that argument as as a about the merits i'm not sure i understand it as a threshold claim that this that the claim is not cognized i'm a little all right let me but i do think i do want to move to the compelling interest analysis but if i could make one point in response to your honor's question that the court's going to decide what person a person's exercise of religion means and that it seems to me that it would be such a vast expansion of what congress must could have thought it was doing in one thousand nine hundred three when an act  to say that profit corporations can make claims for religious exemptions to any laws of general application that they want to challenge i do know mr command says well you don't have to worry about anything other than small tightly knit corporations like  show here i take the point of the appeal of a situation like this one but the way in which he suggests that you will be able to distinguish this case from a case in which a large corporation comes in or a public company comes in is that you will have more grounds to question the sincerity of the claim but that raises exactly the kinds of entanglement concerns that this court has always said you should try to avoid well here that's his argument for distinguishing it but there are others including the fact that it is more you avoid all the problems with what to do if it's you know there's a fifty one percent ownership assurance if you simply say that it's in this type of chapter s corporation that is closely held whether it applies in the other situations is this is a question that will have to await another case when a large publicly traded corporation comes in and says we have religious principles a sort of situation i don't think is going to happen and even but even with respect to the companies you are what are you going to do if there's a dispute between say the three   this in that's also that's a question of state corporate law it's not a question of who can bring an action to reform and then could i just raise eight courts of appeals every court of appeal to look at the situation have held that corporations can bring racial discrimination claims as corporations now this government have a position on whether corporations have a race yes we think those are correct in that the situation is different so the concern that a corporation does have a race for purposes of a criminal shot at the corporation has a race but that corporations can bring those claims but there you're not interpret it in that situation all you interpret is the word person in the statue not exercise of religion which is what makes it different so those are those cases involve construction of the term person yes but owns or the person or some corporation can bring as a person a claim of racial discrimination that's correct but not exercise of religion that's the difference but let me if i could we think that the part of the problem here and the reason we make the argument we do a threshold about why you ought not recognize claims on a river for profit corporations as if they were going to predictably give rise to the kinds of issues you have in this case in which the exemption is going to impose a burden on third parties or extinguish rights of third parties employees or others and that that really can't be what congress was thinking about what you say if you say they can't even get there they even can't even get their their day in court you're saying something pretty pretty strong and i understand it but if you're gonna disagrees with me if the court doesn't agree with this position of the threshold the same considerations with respect to the harms of third parties definitely play in to a compelling interest analysis in fact that under the the standard the precise standard of the statute says the government must meet is that it must show that the application of the law to the particular parties here constant in hobby lobby is in furtherance of the government's compelling interest that's the test so the question here is whether having hobby lobby and costolo go provide this coverage is in furtherance of the government's interests in ensuring that this kind of preventive service coverage is available and in particular the contraceptive coverage that's included within it means that your cancer vision that part of the compelling interest here is that you have to protect the integrity of the operation on integrity of the whole act it is part of our argument absolutely and but it but if there is  constitutionality of the whole act has to be examined before we accept what i think you that's been a sample of my recollection but but but with respect to over the specter that there is a particularized interest here in that what we're talking about is a question of whether fourteen thousand employees and their families get access to this contraceptive average but you you have the example of whole class of corporation and you've done so under your view not because of refresh so let me know when we got put out what kind of strips is a constitutional structure do we have if the congress can give an agency the power have of a first amendment issue of this consequence shouldn't we indicate that it's for the congress not the agency to determine that this corporation gives the exemption that one and not reference purposes for other purposes and your honor let i do think that it was appropriate for the agency in exercising its delegated authority here to take into account the special solicitude that under our constitutional order churches receive and it's important to understand i want to walk through these this question of exemptions very carefully because i think there's a lot of confusion here that needs to be cleared up that all that that all that the government has done is say that churches because of that special solicitude which the court recognizes has a table or churches get an exemption the nonprofit religious organizations don't get an exemption there's an accommodation they're provided but that accommodation results in the employees receiving access to this the contraceptive coverage so that doesn't diminish the government's compelling interest the tenth circuit and my friends on the other side of relied on this idea that employers with fewer than fifty employees but some gave them his emption under according to your breath without reference to the policies of reform what were the policies that you were implementing well with respect to what as i said with respect to churches it was the special solicitude that churches receive under our constitution under the first amendment but with risp but now with respect to  employers fifty and under they it's just not right to say that there's any kind of an exemption if they offer health insurance they're subject to exactly the same perm ploy the per day penalty as larger corporations exactly the same risk of labor department to for dispute arose with mr clemente about how long they were going to be in effect can you make a representation to us about how long the grandfathering is going to be in effect i can't give you a precise figures to it there's a clear downward trajectory there significant movement downward every year in the numbers there's every reason to think that's going to continue i can't give you a precise time when you give me an approximate time if not a precise i i can't give you a representation them exactly how low that number is going to go and exactly how long it's going to take but i think what you're talking about is a period in which that number is going to go to a very very low level over several you lose your you can't tell us and i don't fault you for not being able to tell us when the grandfathering is going to end shouldn't we assume in our analysis that it is current in as far as we can tell not going to end no i don't think that's right your honor and i mean i think let's let's look at this in here if we could in total that with respect to grandfathering it's to be expected that employers and insurance companies are going to make decisions that trigger the loss of that so called grandfathered status under the under the governing regulation there isn't any true with respect to the grandfathered plants that the regulations required immediate compliance with certain requirements but not with the preventive care requirements now let me read you what i just said in the regulation with certain particularly significant protections particularly significant protections congress require grandfathered health plans to comply with a subset of the affordable health reform provisions on the other hand grandfathered health plans are not required to comply with certain other requirements of the affordable care act for example the requirement that preventive health services be covered without any cost sharing so is saying there are quite specifically these in our view are not within this subset of particularly significant requirements as to which there must be immediate compliance of a book the question would be whether there's a compelling interest in compliance with these requirements and i'd like to make two points in response to your honor's question first with respect to this issue of delay which i think mr chief justice your question raised in my from the other side put a lot of weight on i prefer the court to the a da i don't think anybody would doubt that the americans with disabilities act advances interest of the highest order when congress enacted that it put a two year delay on the ability of the discrimination provision well isn't that because you're talking about in friends on the other side have said well this is different because there are so many more people who were going to not have this coverage of the grandfather plan but with respect to title seven of course it's still the case that in employees with fifteen or fewer people are not subject to that law and that's eighty percent of the employers in the country and if you run the math that's it's at least eighty percent that's it's going to be somewhere between ten and twenty two million people who are not within the coverage no one would say that because the coverage is incomplete in that respect the title seven forcing title seven doesn't advance so it's loans were questions those were decisions that congress made right yes grandfathering is not a decision that congress made as well that the way in which it's implemented is a decision that the agency has made that's true but even with respect to the preventive services i don't think anyone would say that there's not a compelling interest in advancing colorectal cancer screening immunizations and in the things that the preventive services provisions provide in addition contraceptive coverage i just think this is a compelling interest under any understanding of the term the about the i just want you get to this point and my question reflects no point of view at all of my on my be have i just that i took contraceptives and everybody says yes i do object to that not sincere he said he's not saying this but i might add that there is a compelling interest in women's health and in the health of the family and they're not having a religious objection to taking it and so the government has said provide it then he says but there is a less restrictive way and the less restrictive way is the government pays for it so it wouldn't cost much you have to have another piece of paper that would go to the insurance company that would say in some areas your employer has a sincere jackson against paying this the government will pay for what i want to hear and this is not  coming from any point of view i want to hear your precise answer to that kind of argument yes they they did argue i will point out for the first time at the podium this morning that a less restrictive means would be to extend the comment i'm not in the us as in whether they made the argument that sooner or later but i want to hear from you is i want to hear and it's not a i do you thought about this and i want to hear your answer to that kind of are right well i want to be sure you have a chance to get the answer i think there are two answers to it that you know assuming it's before the court and i'm going to answer your honest question directly but i do want to make a prefatory point here which is that under the law under ashcroft u for example the burden on the government is to show that proposed less restrictive alternatives are not equally effective they don't propose it we don't have a burden to refute it having said that we can refute it now the and there are two ways the first is they claim that this they don't think that the accommodation is a less restrictive means i take it because they haven't raised it before today because they believe that  require exemptions to that too such that if you were if you were to provide the accommodation in which the insurance company comes in and provides the contraception if the employer signs the form they would say  that that signing the form also makes them complicit in the sinful activity and that therefore refer provides an exemption there too and of course the test is whether the proposed alternative advances the government's interest as effectively and if it is going to be subject to exactly the same objections by exactly the same class of people asking for it it's not going to serve the government's interest as effectively because the riff or exemption will result in no coverage there the second point being that they're so don't make them sign a piece of paper so whether they sign a piece of paper or not if they make the referral claim their which they have with respect to that accommodation it will result in it being less effective in terms of accomplishing the compelling interest in addition we can ask mr cole might want to specific us on this but you can't you say they have already asserted that it would be inconsistent with reference i understand it to provide for a for profit corporation like ones involved here the sort of accommodation that h h s has extended to so called religious non profits perhaps with the modification that was included in our state order in the little sis yes they've taken a position on that you'll have to ask them i don't think they have but they have studiously avoided arguing this is a less restrictive alternative and i take it it's because their theory at least would lead one to the conclusion you have to provide a reproach objection but now the second yes thank you mr chief justice the second point is that you're talking about a very open ended increase in the cost to the government now we don't know how much that cost would be the reason is because since this wasn't litigated in the lower courts is not a record on it so i can't tell you what that what that increase costs are going to be but if you're talking about what three or in june two points to make about that first course the one of the methods of contraception they object to here is the i u d and that is by far and away the the method of contraception that is most effective but has the highest up and creates precisely the kind of cost barrier that the preventive services provision is trying to break down under the i was can taken by your answer i thought it was the government's position that providing coverage for the full range of contraceptives and other devices and drugs that are covered here is actually financially neutral for an insurance company that that reduces their cost that they would incur it is for the insurance company but for the for the woman who's going to not get the benefit of the statute if the exemption is grandma now if that if she if she has the coverage through the insurance company but the employer has nothing to do with arranging for that well so in other words if they haven't raised a riff or objection to the alternative but that but as i said you know there is a logic of their position is that you would get a riff or objection it can't still what i want to go to press is a little bit further and i don't want you simply do with sig to just agree with what i'm about no i mean i mean after all somebody a taxpayer might say i don't want to pay for this small woman and it would be religious ground and it would be very very little money  fact that you take from him or the church might say i want a sunday morning reduction in the cost of municipal parking and by the way that will not only not cost the government anything they'll make money because nobody parks there on sunday particularly with this high a feat and i'm thinking of trying to figure out where this case fits in that spectrum because i think the answer to the first two questions is no and i know and they're i  know so you're just going to agree and that's what i don't want i want i want to understand your thinking on the painting on that point i think that question plugs into our view of what the substantial burden test requires that their view of substantial burden is if you have a sincere religious belief and there is any law with a meaningful penalty that focuses on you pressure to do something inconsistent with your belief then you may pass the substantial burden test i think the problem with that  is they formulated is that under the two hypotheticals that you just gave justice prior you've got a substantial burden in those situations because if you don't pay the tax you can go to jail for example and so we think the substantial burden analysis has got to be more strenuous and that it's got to incorporate principles attenuation and proximate cause and that when you think about this case where the requirements to purchase insurance which enables actions by others but if you're really closer to the tax situation than to imposing a direct obligation to act that's how we would think about that issue but now with respect to a general rule isn't that really a question of theology or moral philosophy which has been debated for by many scholars and and hearings to many religions a does something required to refrain from doing that that that action it's true that it's a difficult question but say it is a religious question and it's a moral question and you want us to provide a definitive secular answer to it all but i do think the problem justice alito is that the this court has recognized and certainly the courts of appeals of recognize that there is a difference you accept the sincerity of the belief but the court still has to make a judgment on its own about what constitutes a substantial burden  otherwise for example the tax thing would be a substantial burden to write we cited a d c circuit case in which prisoners objected to giving d n a samples and the court said we accept the sincerity of that belief but it's up to us to decide whether that's actually a substantial burden in bowen case in this court the court accepted the sincerity of the belief that the use of the child's social security surety number would would offend religious belief and commitments but said they still had to make a judgment about whether that was a substantial burden so it does have to be with all due respect been because the health care coverage was not that important it didn't grant an exemption to any non religious organizations justice kennedy had granted an exemption to churches and that was it with respect to religious non profits the construction and accommodation but the accommodation to live or the contraceptive coverage to the employees of the non profits it just does it through and indirect means but there is no diminution of the there's no basis for question in the government's interest with respect to that accommodation because the employees get the coverage of this out of season issue that's being hotly litigated right now right whether the employees can get the coverage when you're talking about the religious organizations well that that's exactly why i think you can't look to that as a less restrict that accommodation extending out accommodation to for profit corporations as a less restrictive alternative precisely because it's being hotly litigated whether riffraff would require exemptions to that but you're relying on the relying on it to make your point with respect to the accommodation and then you're criticizing your friend for relying on the same thing and making his point well i think to the i think what justice kennedy i took justice kennedy be asking me mr chief justice was whether the government's choice to provide that accommodation reflected a judgment on the part of the government that this was something less than a compelling interest and i don't think that inference is possible because the government was trying to use that accommodation to ensure that the contraceptives were delivered so i with all due respect i don't think there's an inconsistency there  and i do think that if if if i could with respect to this issue of whether there are exemptions that defeat a compelling interest that i submit that would be a very dangerous principle for this court to adopt in title seven and the problem here would be that i think one of the things that's significant about the position that my friends in the us are taking here is that with respect to exemptions for example from the title seven requirement against discrimination on the basis of religion in hiring congress made it quite clear judgment to provide a very narrow exemption churches and religious educational institutions and religious associations and that's it nobody else can claim an exemption under title seven except  obliterate that carefully craft exemption instead say that every for profit corporation now if congress feels as strongly about this as you suggest they can always get pass an exemption to exception to reform which they've done on other occasions and while i haven't done it here well with all  respect your honor i think you could make the same argument either way in this case that the question here is what congress thought it was doing in one thousand nine hundred three and we don't think given the long history in the fact that not only do you have no case in which a for profit corporation ever similar we've already discussed there is no base holding that they can't run in addition if you look at the the history of exemptions and accommodations in our legislation state and federal legislation they extend to churches and religious non profits and that and individuals and that's where the line has been drawn in our legislation historically there's just nothing in other sources until your view profit corporation could be forced in in principle there are some statutes on the books now think that that's it would i think it would depend on the law and it would depend on the entity it certainly wouldn't be true i think for religious nonprofit certainly would no true i'm broke her profit corporation is a profit corporation just don't have any standing  to vindicate the religious rights of their of their shareholders and owners well i i think that if it were for profit corporation and if such a law like that were enacted then you know right under our theory that the for profit corporation wouldn't have an ability to sue but there is no law like that on the books that they're the fact the law is the opposite i'm sorry i lost track that there is no law on the books that does what that makes the requirement of the kind of justice kennedy hypothesize the law is the opposite well fleshed out a little more of what there is no longer books that does what it requires for profit corporations to provide abortions and if i want to have that we're talking about in terms of their religious beliefs well i just believe says that they have to pay for these four methods of contraception that they believe provide abortions i thought that's what we had before us it is their sincere belief and we don't question that but what but i will say i do i do think this is important and i say with all respect that that is how they that is the judgment that they make is not the judgment that federal law or state law reflects the federal law and state law which does which do preclude funding for abortions we don't consider these particular forms of contraception to be abortion with all due respect i would say that i think that you know you've got about two million women who rely on an i u d as a method of birth control in this country i don't think they think that they are engaged in abortion in doing that it is their belief it's sincere we  respect it but it isn't a belief that we think is reflected in federal or state law or our traditions of where that line is drawn and so and and and i you know i do think the that is what makes this a difficult case i agree and if you disagree with our position at the threshold of corporations that even though you have a situation and weak knowledge you have you can have situations in which the tightly knit group small a small group of  individuals own and operate a corporation where there's appeal to that to the argument that they ought to recognize a claim of exercise or religion in most circumstances the problem i would submit is of the implications of doing  when you move past that group the minister build the problems in the problems of as inviting the kinds of claims that are predictably going to impose harms on their part of what i view what about the implications of saying that no for profit corporation can raise any sort of free access at all and nobody associated with a for profit corporation can raise any sort of free exercise claim that all me give you this example according to the media denmark recently prohibited kosher and hell all slaughter methods because they believe that their inhumane now suppose congress some acted something like that here what would the what would a corporation that is a kosher or all slaughterhouse do they would simply they would have no recourse whatsoever they couldn't even get a day in court they couldn't raise a riff or claim they couldn't raise a first amendment claim and i'm not sure they couldn't raise a first amendment claim justice alito i think if you had a targeted law like that if it were targeted only at the practices of the kosher practices then i think you would have an issue of whether it's a targeted law or not but even if it is now they say they say no animal be slaughtered unless it's stunned first unless the animal is rendered unconscious before it is slaughter so i think in that circumstance you you would have i think and then the ability for customers to bring suit i think you might recognize third party standing on behalf of the corporate on the corporations on behalf customer so a suit like that could be brought but even if you disagree with me at the threshold if you disagree with us that you're with respect to the kinds of risks that we think you will be inviting if you hold it for profit corporations can bring these claims when you get to the compelling interest analysis the rights of the third party employees are at center stage here and that's the i think that's the point of critical importance in thinking about this case and i think frankly the parent that has been just left on the sidelines when my friends on the other side a consequence of holding here the river exemption applies it's not a situation like ones in which this court under the free exercise clause or a river has recognized exemptions in the past those have always been situations where it's a relationship between the individual and the government and granting the exemption might result in the government not being able to enforce the law with respect to  making is it take five jewish or muslim butchers and what you're saying to them is if they choose to work under the corporate form which is viewed universe you have to give up on that for the freedom of exercise clause that you'd otherwise have now look out that way i don't think it matters whether they call themselves a corporation or whether they call themselves individuals i mean i think that's the question you're being asked  i and i and i need to know what your response is to what i think our response is what the court said in part three of the lead opinion which is that once you make a choice to go into the commercial sphere what you certainly do when you incorporate a for profit you are making a choice to live by the rules that govern you and your competitors in the commercial sphere but even if you disagree with me about that but i'd like to leave the court with what i think is the most important point here is that if this exemption  extinguishes statutorily guaranteed benefits of fundamental importance lead came to exactly the opposite conclusion with respect to social security benefits that you that it was imperative that the ploys interest be protected and that is the fundamental problem with the position that my friends on the other side raise here that they leave the third party employees entirely out of the equation ok for not for profit corporations to do that with respect to all of their employees and some of them are pretty big operations and that's ok they're not we don't think that we don't we're not drawing a line between nonprofits and profits they they can make you allow them to make this religious objection of no not religious non profits get an accommodation in wh get the contraception but we're not drawing a line between for but i don't have to pay for right the and you could set that up this way that these people don't have to pay for well there is ice as i've said a couple of times they haven't asked for that until until this morning whe fundamental point here is that you would be extinguishing statutorily guaranteed health benefits fundamental importance to these employees and that is something that this court has never done and i submit that congress can't have thought it was authorizing when an active refrain hundred three thank you thank you general mr comment four minutes thank you mr chief justice just a few points in rebuttal let me start with the abortion conscious clauses because it tells you something about where congress has drawn the line and it tells you the consequences of the government's position historically those conscious provisions have applied to all medical providers including for profit medical providers but we learned today that as far as the government is concerned that's just congress's judgment of congress changes its judgment a for profit medical provider has to provide abortion refrig doesn't apply that with all due respect cannot be what congress had in mind when it passed rif they also suggested if a kosher market takes the trouble to incorporate itself then it has no free exercise claims at all now you can go back and read the crown kosher case i took it it's common ground that all nine justices thought that if the massachusetts law there had forced crown kosher to be open on saturday that that would be a free exercise claim notwithstanding incorporation the second one i want to talk about it's least restrictive alternatives in a colloquy with justice scalia the solicitor general points out that yeah well it's a little bit different from the pre smith law because now you have the less restrictive alternatives analysis that's not a small difference that's a major difference and it's really the easiest way to rule against the government in this case because you have a unique situation here where their policy is about a government subsidy for a government preferred health care item and the question is who pays the government paying for third party insure paying is a perfectly good at least restrictive we'll go back to the start of my question that would be essentially the same for x e blood transfusion non  pork products the government has to pay for all of the medical needs and employ you thinks or claims he has a religious  vaccines presumably to some people on some basis but we have a tax code that applies to everybody who we have a million exemptions was the creation of the exemption we lead me from paying taxes when i have a sincere religious belief that taxes are in moral i think least says that taxes are different and not all exemptions are created equal because some exemptions undermine the compelling interest now the reason isn't there a federal program that pays for vaccines for any children who are not covered by insurance for those vaccines there is justice league of course there's also title ten which provides contraception coverage which is another least restrictive alternative but i do want to get on the table that it is not true that we have not suggested that the accommodation provided to religious employers like nonprofit hospitals that's not something i vented at the podium if you look at page fifty eight of our brief the read brief we specifically say that one of the least restrictive alternatives would be the most obvious least restrictive alternatives for the government to pay for their favorite contraception methods themselves later in that paragraph the only full paragraph on the page we say and indeed the government attempted something like that with respect to certain objective employers objecting employees and employers and we cite the federal register provision where there is the accommodation two years clients claim that filling out the form if you're saying they would claim an exemption like the churches have already we haven't been offered that accommodation so we haven't had to decide what kind of objection if any would make to that but it's important to recognize that as i understand that litigation the objection is not to the fact that the insurance or the provide pays for the contraception coverage the whole debate is about how much complicity there has be from the employer in order to trigger that coverage and whatever the answer is for little sisters of the poor presumably you could extend the same thing to my clients and there wouldn't be a problem with that if i could have just one second more to say that the agency point that just school just as kennedy has pointed to is tremendously important because congress spoke its spoken reffer here the agency has decided that it's going to accommodate a subset of the persons protected by reference in a choice between what congress is providing with the agency is done the answer is clear thank you thank you counsel counsel the case is submitted