Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 1 of 46

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(I) HOBBY LOBBY STORES, INC., (2) MARDEL, INC., (3) DAVID GREEN, (4) BARBARA GREEN, (5) STEVE GREEN, (6) MART GREEN, and (7) DARSEE LETT,

Plaintiffs, v.
(I) KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services,
(2) UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
(3) HILDA SOLIS, Secretary of the United States Department of Labor,
(4) UNITED STATES DEPARTMENT OF LABOR,
(5) TIMOTHY GEITHNER, Secretary of the United States Depaliment of the Treasury, and
(6) UNITED STATES DEPARTMENT OF THE TREASURY,

Civil Action No. -CI-V--12- -1- 000-HE
VERIFIED COMPLAINT JURY DEMANDED

Defendants.

S. Kyle Duncan, LA Bar No. 25038 Eric S. Baxter, D.C. Bar No. 479221 Lori Halstead Windham, D.C. BarNo. 501838
THE BECKET FUND FOR RELIGIOUS LIBERTY
3000 K Street, N.W., Suite 220 Washington, D.C. 20007 Telephone: (202) 955-0095 Facsimile: (202) 955-0090 (fax) kduncan@becketfund.org
Attorneys for Plaintiffs

Charles E. Geister III, OBA No. 3311 Derek B. Ensminger, OBA No. 22559 HARTZOG, CONGER, CASON & NEVILLE 1600 Bank of Oklahoma Plaza 201 Robert S. Kerr Avenue Oklahoma City, OK 73102 Telephone: (405) 235-7000 Facsimile: (405) 996-3403 cgeister@hartzoglaw.com densminger@hartzoglaw.com Attorneys for Plaintiffs

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Plaintiffs Hobby Lobby Stores, Inc., Mardel, Inc., David Green, Barbara Green, Steve Green, Mart Green, and Darsee Lett, by and through their attorneys, allege and state as follows:
NATURE OF THE ACTION 1. This is a challenge to regulations issued under the 2010 Patient Protection and Affordable Care Act that would force religiously-motivated business owners like Plaintiffs to violate their faith under threat of millions of dollars in fines. 2. Plaintiffs David Green, Barbara Green, Steve Green, Mart Green, and Darsee Lett ("the Green family") are committed evangelical Christians. Through various trusts, they own and operate plaintiff Hobby Lobby Stores, Inc. ("Hobby Lobby"), a privately held retail business headquartered in Oklahoma City. Hobby Lobby currently operates over 500 stores in over 40 states and has over 13,000 full-time employees. 3. Through various trusts, the Green family also owns and operates plaintiff Mardel, Inc. ("Mardel"), a privately held bookstore and education company headquartered in Hobby Lobby's Oklahoma City complex that sells a variety of Christian-themed materials. Mardel currently operates 35 stores in 7 states and has 372 full-time employees. 4. Unless context indicates otherwise, "Plaintiffs" refers collectively to the Green family, Hobby Lobby, and Mardel.

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5. The Green family believes they are obligated to run their businesses in accordance with their faith. Commitment to Jesus Christ and to Biblical principles is what gives their business endeavors meaning and purpose.
6. The Green family's business practices therefore reflect their Christian faith in unmistakable and concrete ways. For example, they employ full-time chaplains to meet their employees' spiritual and emotional needs. They pay all of their employees well above the minimum wage and provide them with excellent benefits. They monitor their merchandise, marketing, and operations to make sure all are consistent with their beliefs. They give millions of dollars from their profits to fund missionaries and ministries around the world. And, as is well known, they close all their stores on Sundays, even though they lose millions in annual sales by doing so.
7. The Green family's religious beliefs forbid them from patticipating in, providing access to, paying for, training others to engage in, or otherwise suppOliing abOltion-causing drugs and devices.
8. The administrative rule at issue in this case ("the Mandate") runs roughshod over the Green family's religious beliefs, and the beliefs of millions of other Americans, by forcing them to provide health insurance coverage for abortion-inducing drugs and devices, as well as related education and counseling.
9. The Mandate illegally and unconstitutionally coerces the Green family to violate their deeply-held religious beliefs under threat of heavy fines, penalties, and
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lawsuits. The Mandate also forces the Green family to facilitate government-dictated speech incompatible with their own speech and religious beliefs. Having to pay fines for the privilege of practicing one's religion or controlling one's own speech is alien to our American traditions of individual liberty, religious tolerance, and limited government. It is also illegal and unconstitutional.
10. The Mandate does not apply to everyone equally. The government has not required every insurance plan in the country to cover these services, but has instead exempted numerous persons and groups, often for reasons of commercial convenience. Millions of employers may escape the mandate because of the age of their plans or because of the number of people they employ. Certain non-profit religious organizations have been exempted from the mandate altogether, and others have been given extra time to comply with it. But the government refuses to give any accommodation whatsoever to families like the Greens, who simply want to run their businesses in accordance with their beliefs.
II. Defendants have no power to determine that businesses and business owners like the Greens deserve third-class protection for their religious faith. Religious fi'eedom is the birthright of every American. It does not belong solely to those organizations Defendants have chosen to favor.
12. Defendants' actions therefore violate Plaintiffs' rights to freedom of religion, speech, and association as secured by the First and Fifth Amendments to the United
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States Constitution and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq.
l3. Furthermore, the Mandate is illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
14. Religious beliefs like those of the Green family concerning abortion are neither obscure nor unknown. In formulating and finalizing the Mandate, the government acted with full knowledge that the Mandate would run counter to beliefs like theirs, shared by millions of Americans. And yet the government not only refused to exempt objecting business owners like the Greens, but it allowed plans to exclude these services for a wide range of reasons other than religion. The Mandate can therefore be interpreted as nothing other than a deliberate attack on the religious beliefs of the Greens and millions of other Americans.
15. Plaintiffs therefore seek declaratory and injunctive relief against the Mandate. JURISDICTION AND VENUE
16. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.c. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1.
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17. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). Plaintiffs reside in this district. A substantial part of the events or omissions giving rise to the claim occurred in this district.
IDENTIFICATION OF PARTIES 18. Plaintiff David Green founded Hobby Lobby in 1970 and remains its CEO. He is also a trustee of one or more of the trusts described in paragraphs 2 and 3 of this Complaint. He is a Christian and, from the beginning, has sought to run Hobby Lobby in harmony with God's laws and in a manner which brings glory to God. 19. Plaintiff Barbara Green is a trustee of one or more of the trusts described in paragraphs 2 and 3 of this Complaint. She is a Christian and, from the beginning, has sought to run Hobby Lobby in harmony with God's laws and in a manner which brings glory to God. 20. Plaintiff Steve Green is the President of Hobby Lobby and a trustee of one or more of the trusts described in paragraphs 2 and 3 of this Complaint. He is a Christian and, from the beginning, has sought to run Hobby Lobby in harmony with God's laws and in a manner which brings glory to God. 21. Plaintiff Mart Green is the Vice CEO of Hobby Lobby and the CEO of Mardel, a chain of education and supply stores providing Christian books and church supplies. He is also a trustee of one or more of the trusts described in paragraphs 2 and 3 of this Complaint. Mart is also founder of several Christian media companies and Chairman of
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the Board of Oral Roberts University. He is a Christian and, from the beginning, has sought to run Hobby Lobby, Mardel, and his other business ventures in harmony with God's laws and in a manner which brings glory to God.
22. Plaintiff Darsee Lett is Vice-President of Hobby Lobby and trustee of one or more of the trusts described in paragraphs 2 and 3 of this Complaint. She is a Christian and, from the beginning, has sought to run Hobby Lobby in harmony with God's laws and in a manner which brings glory to God.
23. Hobby Lobby is a privately held, for-profit corporation located in Oklahoma City and organized under Oklahoma law. Hobby Lobby is not a church, an integrated auxiliary of a church, or a convention or association of churches as defined by 26 U.S.C. § 6033(a)(3)(A)(i). Hobby Lobby is not a religious order as defined by 26 U.S.C. § 6033(a)(3)(A)(iii). Nor is it a church or a convention or association of churches as defined by 26 U.S.C. § 414(e).
24. Mardel is a privately held, for-profit corporation located in Oklahoma City and organized under Oklahoma law. Mardel is not a church, an integrated auxiliary of a church, or a convention or association of churches as defined by 26 U.S.C. § 6033(a)(3)(A)(i). Mardel is not a religious order as defined by 26 U.S.C. § 6033(a)(3)(A)(iii). Nor is it a church or a convention or association of churches as defined by 26 U.S.C. § 4l4(e).
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25. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate.
26. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services ("HHS"). In this capacity, she has responsibility for the operation and management ofHHS. Sebelius is sued in her official capacity only.
27. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate.
28. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only.
29. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
30. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
3I. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
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FACTUAL ALLEGATIONS I. The Green Family and Hobby Lobby.
32. Hobby Lobby began as Greco Products, a decorative frame company. In 1970, David Green started the business with a six hundred dollar bank loan, building hobby frames in a garage and selling them to other retailers.
33. As the business grew, David Green re-named the company Hobby Lobby and opened the first retail store in Oklahoma City in 1972. From the beginning, Hobby Lobby was a family business. David and Barbara worked in the store and packaged and shipped their frames to other retailers. Steve and Mart, in exchange for money to buy baseball cards, glued fi'ames together at the family's kitchen table.
34. The store became successful. The Greens moved to a larger space, and then to an even larger one, and then began to open additional stores. They broadened their offerings to include a variety of art and craft supplies, home decor, and holiday decorations. Today, Hobby Lobby has grown into one of the nation's leading craft store chains, operating 514 stores in 41 states with 13,240 full-time employees.
35. Hobby Lobby has continued to expand and create new jobs, even during the recent economic downturn.
36. Hobby Lobby has always operated as a family business. David and Barbara Green did much of the work themselves in their first stores. As their children Steve, Mati, and Darsee grew older, the Greens introduced them to the business and trained them to
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run a retail chain. Today, Steve is the President of Hobby Lobby, Darsee is VicePresident, and Malt is Vice CEO.
37. In 1981, Plaintiff Mart Green founded Mardel, a bookstore and educational supply company that specializes in Christian materials, such as Bibles, books, movies, apparel, church and educational supplies, and homeschool curricula. Mardel operates 35 stores in 7 states and has 372 employees.
38. The members of the Green family operate Hobby Lobby and Mardel through a management trust, which owns all of the voting stock of these companies. Each member of the Green family is a trustee of the management trust. By its own terms, this trust exists first and foremost "to honor God with all that has been entrusted" to the Green family and to "use the Green family assets to create, support, and leverage the effOlts of Christian ministries." The trustees must sign a Trust Commitment, which among other things requires them to affirm the Green family statement of faith and to "regularly seek to maintain a close intimate walk with the Lord Jesus Christ by regularly investing time in His Word and prayer." II. The Green Family's Religious Beliefs Related to Abortion-Causing Drugs and
Devices. 39. Since the beginning, the Green family has operated Hobby Lobby according to their Christian faith. Christian beliefs and values inform their decisions and form the inspiration for their company. The family members use their profits to support Christian
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charities and ministries around the world. They believe that God has blessed them so that they might bless others.
40. For example, David and Barbara Green signed the Giving Pledge, agreeing to donate the majority of their wealth to philanthropy. In this pledge, the Greens stated, "We honor the Lord in all we do by operating the company in a manner consistent with Biblical principles. From helping orphanages in faraway lands to helping ministries in America, Hobby Lobby has always been a tool for the Lord's work. For me and my family, charity equals ministry, which equals the Gospel of Jesus Christ."
41. Hobby Lobby bears the imprint of its owners' faith. As they explain on the company website, "The foundation of our business has been, and will continue to be strong values, and honoring the Lord in a manner consistent with Biblical principles."
42. Hobby Lobby's statement of purpose reads: In order to effectively serve our owners, employees, and customers the Board of Directors is committed to: Honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles. Offering our customers an exceptional selection and value. Serving our employees and their families by establishing a work environment and company policies that build character, strengthen individuals, and nurture families. Providing a return on the owners' investment, sharing the Lord's blessings with our employees, and investing in our community.
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We believe that it is by God's grace and provision that Hobby Lobby has endured. He has been faithful in the past, we trust Him for our future. 43. Hobby Lobby's Christian underpinnings are apparent to customers shopping in its stores. Among other things, the stores use a carefully managed music playlist which prominently features inspirational Christian songs. They do not stock gruesome or bloody Halloween decorations, nor risque greeting cards. They carry religiously themed merchandise, particularly in their Christmas and Easter seasonal sections, which occupy a large portion of each store. 44. Furthermore, the Green family's religious beliefs forbid them from facilitating activities they regard as immoral or harmful. For instance, they refuse to sell shot glasses at Hobby Lobby. They once declined an offer from a liquor store to take over one of their building leases, because they did not want to facilitate alcohol use in the neighborhood around the store. Taking the liquor store's offer would have saved them hundreds of thousands of dollars a month. Similarly, the family refused to allow their trucks to "backhaul" beer shipments for a major distributor, even though the profits from doing so would have been substantial. 45. Perhaps the most well-known expression of the Greens' religious beliefs is the decision to close Hobby Lobby stores on Sundays. The Greens believe that employees should not be asked to regularly work on Sundays, so they can enjoy a day of rest and spend the day with their families. They made this decision because they believed it was the right thing to do, even though it initially cost them millions in lost revenues.
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46. Consistent with the Green family's religious beliefs, Hobby Lobby stores are open no more than 66 hours per week. They close at 8 p.m. so that employees can spend the evening with their families. Again, the Greens know they might earn more if they stayed open later, but they believe it is more important to respect their employees and their families.
47. Every Christmas and Easter, Hobby Lobby takes out full-page ads in all newspapers in which it advertises. These ads celebrate the religious nature of the holidays and direct readers who would like to learn more, or are in need of spiritual guidance, to a site where they can download a free Bible and to the phone number of an outside ministry which provides spiritual counseling. In recent years, they have also taken out ads on the Fourth of July, celebrating the Christian beliefs of many of our nation's founders. They maintain an archive of those ads on the company website: http://www.hobbylobby.com/holiday_messages/holiday_messages.cfm.
48. Hobby Lobby has always served a diverse customer base, many of whom do not share the owners' religious beliefs. It strives to welcome and show respect to people of all religious faiths, or no faith at all. The Green family and their employees respond respectfully to criticism they have received for their beliefs about faith and business. The Greens believe it would be wrong to erase their faith from the company they operate.
49. Like Hobby Lobby, Mardel is a company run in accordance with the Green family's (and CEO Mart Green's) religious beliefs. Mardel is a bookstore and educational
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supply company that specializes in Christian materials, such as Bibles, books, movies, apparel, church and educational supplies, and homeschool curricula. Mardel describes itself as "a faith-based company dedicated to renewing minds and transforming lives through the products we sell and the ministries we support." It gives 10% of its net profits to help print Bibles translated by Wycliffe Bible Translators. Mardel's 372 employees receive their health insurance coverage through Hobby Lobby's self-insured plans.
50. The Green family believes that they have a religious obligation to treat their employees fairly and with respect, and to compensate good work with good wages and benefits. Over the years, they have looked for oppOliunities to raise wages, and have long provided minimum salaries well above any national or regional minimum wage. Despite the recession, they have increased wages for full-time employees for the last four years in a row. The wages for Hobby Lobby's full-time employees start at 80% above the federal minimum wage.
5!. The Green family also employs company chaplains to minister to employees' personal needs. They provide religiously-inspired financial management classes for employees seeking to improve their family finances. They provide an on-site health clinic for their Oklahoma City employees. They provide conflict and dispute resolution classes based on Biblical principles. Employees are also offered an option to resolve employment disputes through various means, including Christian conciliation. Hobby Lobby
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welcomes employees of all faiths or no faith, and seeks to create a positive, familyfriendly environment for its workers.
52. As part of their religious obligations, the Green family also provides excellent health insurance coverage to Hobby Lobby's and Mardel's employees through a selfinsured plan. As in other aspects of the business, the Greens believe it is imperative that their employee benefits are consistent with their religious beliefs.
53 . The Green family's religious beliefs prohibit them from deliberately providing insurance coverage for prescription drugs or devices inconsistent with their faith, in palticular abOition-causing drugs and devices.
54. Hobby Lobby's insurance policies have long explicitly excluded- consistent with their religious beliefs- contraceptive devices that might cause abortions and pregnancy-termination drugs like RU-486.
55. Recently, after learning about the nationally prominent HHS mandate controversy, Hobby Lobby re-examined its insurance policies to ensure they continued to be consistent with its faith. During that re-examination, Hobby Lobby discovered that the formulary for its prescription drug policy included two drugs- Plan B and Ella-that could cause an abOition. Coverage of these drugs was not included knowingly or deliberately by the Green family. Such coverage is out of step with the rest of Hobby Lobby's policies, which explicitly exclude abortion-causing contraceptive devices and
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pregnancy-termination drugs. Hobby Lobby therefore immediately excluded the inconsistent drugs from its policies.
56. The Green family also believes it would violate their faith to deliberately provide health insurance that would facilitate access to abortion-causing drugs and devices, even if those items were paid for by an insurer or a plan administrator and not by Hobby Lobby itself.
57. The Greens have no religious objection to providing coverage for nonabortion-causing contraceptive drugs and devices.
58. The Green family and Hobby Lobby have expended significant resources working with Hobby Lobby's insurers and plan administrators to ensure that its health insurance policies reflect their religious beliefs.
59. Before the Mandate was issued, Hobby Lobby made the decision not to retain grandfathered status under the Affordable Care Act. Neither its 20 II nor its 2012 plan materials included a notice of grandfather status. Therefore Hobby Lobby's insurance plan is not grandfathered. See 45 C.F.R. § 147.140(a)(I)(i), 26 C.F.R. § 54.9815125lT(a)(1)(i); 29 C.F.R. § 2590.715-1251(a)(1)(i). III. The Affordable Care Act
60. In March 2010, Congress passed, and President Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the
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Health Care and Education Reconciliation Act, Pub. L. I I 1-152 (March 30, 2010), collectively known as the "Affordable Care Act."
61. The Affordable Care Act regulates the national health insurance market by directly regUlating "group health plans" and "health insurance issuers."
62. The Act does not apply equally to all plans. 63. The Act does not apply equally to all insurers. 64. The Act does not apply equally to all individuals. 65. The Act applies differently to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A). 66. According to the United States census, more than 20 million individual workers are employed by firms with fewer than 20 employees. http://www.census.gov/econ/smallbus.html. Employers with less than 50 employees would therefore employ an even higher number ofworkers. 67. Certain provisions of the Act do not apply equally to members of celiain religious groups. See, e.g. , 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of "recognized religious sect or division" that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of "health care sharing ministry" that meets certain criteria).
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68. The Act's preventive care requirements do not apply to employers who provide so-called "grandfathered" health care plans.
69. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
70. HHS has predicted that a majority oflarge employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of small employers with between 50 and 100 employees may do likewise. http://www.healthcare.gov/news/factsheets/20 10106/keeping-the-health-plan-you-havegrandfathered.html.
71. The Act IS not generally applicable because it provides for numerous exemptions from its rules.
72. The Act is not neutral because some individuals and organizations, both secular and religious, enjoy exemptions from the law, while other religious individuals and organizations do not.
73. The Act creates a system of individualized exemptions. 74. The Department of Health and Human Services has the authority under the Act to grant compliance waivers to employers and other health insurance plan issuers ("HHS waivers"). 75. HHS waivers release employers and other plan issuers from complying with the provisions ofthe Act.
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76. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers.
77. Upon information and belief, thousands ofHHS waivers have been granted. 78. The Act is not neutral because some secular and religious groups and individuals have received statutory exceptions while other religious groups and individuals have not. 79. The Act is not neutral because some secular and religious groups and individuals have received HHS waivers while other religious groups and individuals have not. 80. The Act is not generally applicable because Defendants have granted numerous waivers from complying with its requirements. 81. The Act is not generally applicable because it does not apply equally to all individuals and plan issuers. 82. The Act is neither neutral nor generally applicable because Defendants have exempted certain religious employers, but not religious businesses and business-owners like Plaintiffs. 83. The Act is neither neutral nor generally applicable because Defendants have issued a "safe harbor" protecting certain non-exempt non-profit religious objectors from the Mandate, but not religious businesses and business-owners like Plaintiffs.
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84. The Act is neither neutral nor generally applicable because Defendants have stated an intention to make certain non-exempt non-profit religious objectors effectively exempt through the ANPRM (described below), but not religious businesses and business-owners like Plaintiffs.
85. Defendants' waiver practices create a system of individualized exemptions. IV. The Preventive Care Mandate
86. One of the provisions of the Affordable Care Act mandates that health plans "provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration," and directs the Secretary of Health and Human Services to determine what would constitute "preventative care" under the mandate. 42 U.S.C § 300gg13(a)(4).
87. On July 19, 2010, HHS, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726 (2010).1 The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published
For ease of reading, references to "HHS" in this Complaint are to all three Departments.
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by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
88. The Mandate also requires group health care plans and issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
89. The Mandate went into effect immediately as an "interim final rule." 90. HHS accepted public comments to the 2010 interim final rule until September 17, 2010. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for celiain kinds of health care, including contraception, sterilization, and abortion. 91. HHS directed a private health policy organization, the Institute of Medicine ("!oM"), to suggest a list of recommended guidelines describing which drugs, procedures, and services should be covered by all health plans as preventive care for women. See http://www.hrsa.gov/womensguidelines. 92. In developing its guidelines, !OM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), Prof. John Santelli, a Senior Fellow at the Guttmacher Institute, the National Women's Law Center, National Women's Health Network, Planned Parenthood Federation of America and Prof. Sara Rosenbaum, a proponent of government-funded abortion.
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93. No religious groups or other groups that oppose government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
94. One year after the first interim final rule was published, on July 19, 2011, the 10M published its recommendations. It recommended that the preventive services include "[a]ll Food and Drug Administration approved contraceptive methods [and] sterilization procedures." Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19,2011).
95. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices and injections; levonorgestrel, also known as the "morning-after pill" or "Plan B"; and ulipristal, also known as "Ella" or the "week-after pill"; and other drugs, devices, and procedures. The FDA birth control guide specifically notes that Plan B and Ella may work by preventing "attachment (implantation)" of a fertilized egg to a woman's uterus. See http://www.fda.gov/downloadslForConsumers/ByAudience/ ForWomenIFreePublications/UCM2820 14.pdf.
96. Thirteen days later, on August 1, 2011, HRSA issued guidelines adopting the 10M recommendations. See http://www.hrsa.gov/womensguidelines. On the same day HHS, the Department of Labor, and the Depattment of Treasury promulgated an amended interim final rule which reiterated the Mandate and added a narrow exemption
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for "religious employer[s]." 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
97. HHS did not take into account the concerns of religious organizations and individuals in the comments submitted before the Mandate was issued.
98. The Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations and individuals.
99. When it issued the Mandate, HHS requested comments from the public by September 30, 2011 , and indicated that comments would be available online.
100. Upon information and belief, over 100,000 comments were submitted against the Mandate and its narrow "religious employer" exemption.
10 1. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that "we are in a war."
102. The Mandate fails to take into account the statutory and constitutional conscience rights of religious individuals like the Green family, even though those rights were raised in the public comments.
103. The Mandate requires that Plaintiffs provide coverage or access to coverage for abortion-causing drugs and related education and counseling against their consciences in a manner that is contrary to law.
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104. The Mandate constitutes government-imposed pressure and coercion on Plaintiffs to change or violate their religious beliefs.
105. The Mandate exposes Plaintiffs to substantial fines and other penalties and pressures for refusal to change or violate their religious beliefs.
106. The Mandate forces Plaintiffs to provide coverage or access to coverage for abortion-causing drugs and devices, including Plan B and Ella, in violation of Plaintiffs' religious beliefs.
107. Plaintiffs have a sincere religious objection to providing coverage for Plan B and Ella since they believe those drugs could prevent a human embryo-which they understand to include a fertilized egg before it implants in the uterus- from implanting in the wall of the uterus, causing the death of the embryo.
108. Plaintiffs have a sincere religious objection to providing coverage for celtain contraceptive intrauterine devices or "IUDs" since they believe those devices could prevent a human embtyo from implanting in the wall of the uterus, causing the death of the embryo.
109. Plaintiffs consider the prevention by artificial means of the implantation of a human embryo to be an abortion.
110. Plaintiffs believe that Plan B, Ella and celtain IUDs can cause the death of the embryo.
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111. Plan B can prevent the implantation of a human embryo in the wall of the uterus.
112. Ella can prevent the implantation of a human embryo in the wall of the uterus. 113. Certain IUDs can prevent the implantation of a human embryo in the wall of the uterus. 114. Plan B, Ella, and certain IUDs can cause the death ofthe embryo. 115. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an "abortion" as that term is used in federal law. 116. The use of artificial means to cause the death of a human embryo constitutes an "abortion" as that term is used in federal law. 117. The Mandate forces Plaintiffs to provide insurance coverage or access to insurance coverage for abortion-causing drugs and devices, including Plan B and Ella, regardless of the ability of insured persons to obtain these drugs from other sources. 118. The Mandate forces Plaintiffs to provide insurance coverage 01' access to insurance coverage for education and counseling concerning abortion-causing drugs and devices that directly conflicts with their religious beliefs and teachings. 119. Providing this counseling and education is incompatible and irreconcilable with Plaintiffs' express messages and speech. 120. The Mandate forces Plaintiffs to choose between violating their religious beliefs 01' terminating employee health insurance coverage and incurring substantial fines.
24

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 26 of 46
121. Group health plans and issuers will be subject to the Mandate starting with the first insurance plan year that begins on or after August 1,2012.
122. Plaintiffs have already had to devote significant institutional resources, including both staff time and funds, to determining how to respond to the Mandate. Plaintiffs anticipate continuing to make such expenditures of time and money up until the time that the Mandate goes into effect. V. The Narrow and Discretionary Religious Employer Exemption
123. The Mandate indicates that that the Health Resources and Services Administration ("HRSA") "may" grant religious exemptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A). Among other things, those employers must be "a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." 45 C.F.R. § 147. 130(a)(iv)(B).
124. As a for-profit company, Hobby Lobby does not qualify for this exemption. 125. After public outcry over the Mandate, Defendant Sebelius announced that "[njonprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law," on the condition that those employers certify they qualify for the extension.
25

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 27 of 46
126. Hobby Lobby does not qualify for this "safe harbor," since it is a for-profit company.2
127. On February 10,2012, President Obama held a press conference at which he announced an intention to initiate, at some unspecified future date, a separate rulemaking process that would work toward creating a different insurer-based mandate. This promised mandate would, the President stated, attempt to take into account the kinds of religious objections voiced against the original Mandate contained in the interim final rule.
128. On February IS, 2012, Defendants adopted as final, "without change," the narrow "religious employer" exemption. 77 Fed. Reg. 8725, 8727.
129. On March 16, 2012, Defendants issued an Advance Notice of Proposed Rulemaking ("ANPRM"). The ANPRM announced Defendants' intention to create an "accommodation" for non-exempt religious organizations under which Defendants would require a health insurance issuer (or third party administrator) to provide coverage for these drugs and services- without cost sharing and without charge-to employees
2 See HHS, Guidance on Temporary Enforcement Safe Harbor, U.S . DEP'T OF HEALTH & HUMAN SERVS. (Feb. 10, 2012), at 3, available at http ://cciio.cms.gov/resources/fileslFiles2/021 020 12/20 12021O-Preventive-ServicesBulletin.pdf (last visited Sept. 10, 2012). The government recently expanded the safe harbor, but it still does not include for-profit businesses like Plaintiffs. See HHS, Guidance on Temporary Enforcement Safe Harbor, U.S. DEP'T OF HEALTH & HUMAN SERVS. (August IS, 2012), available at http://cciio.cms.gov/resources/files/prev-servicesguidance-08152012.pdf (last visited Sept. 10, 2012).
26

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 28 of 46
covered under the organization's health plan. The ANPRM solicited public comments on structuring the proposed accommodation, and announced Defendants' intention to finalize an accommodation by the end of the Safe Harbor period. See https:lls3.amazonaws.comlpublic-inspection.federalregister.gov/20 12-06689.pdf (published on March 21, 2012).
130. The ANPRM did not announce any intention to alter the Mandate or its narrow "religious employer" exemption, which was made "final, without change" on February 15, 2012. All the ANPRM's suggestions for future rulemaking are limited to non-profit religious organizations. The government has made no promises, either in the ANPRM or anywhere else, to provide protection for religious business owners like Plaintiffs.
131. The plan year for Hobby Lobby's and Mardel's employee insurance plan begins on January I of each year.
132. The Mandate takes effect against Hobby Lobby's and Mardel's employee insurance plan on January 1,2013.
133. On January 1, Plaintiffs will face an unconscionable choice: either violate the law, or violate their faith. VI. The Mandate's Effect on the Plaintiffs and the Need for Immediate Relief
134. The Mandate constitutes government-imposed pressure on Plaintiffs to act contrary to their religious beliefs.
27

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 29 of 46
135. The Mandate exposes Plaintiffs to enormous fines and other penalties and pressures if it refuses to comply.
136. Hobby Lobby has about 13,240 full-time employees as of September 1,2012. 137. Mardel has about 372 full-time employees as of September 1,2012. 138. The Mandate imposes a burden on Plaintiffs' employee recruitment and retention efforts by creating uncertainty as to how they will be able 10 offer health insurance beyond 2012. 139. The Mandate places Plaintiffs at a competitive disadvantage in its efforts to recruit and retain employees. 140. Plaintiffs are planning now for the 2013 insurance plan year. 141. Every fall, Plaintiffs work with their insurance plan administrators to set up the plans for the coming year. The process is time consuming: Plaintiffs' HR depal1ment must work with its administrators on plan changes and on the production and distribution of plan materials and employee insurance cards. 142. Plaintiffs need immediate relief from the Mandate in order to arrange for and continue providing employee health insurance to their employees. Delay could lead to a lapse in coverage, placing the health and well-being of thousands of employees and their families in jeopardy. Denial of immediate relief will force Plaintiffs to choose between their religious beliefs and the prospect of crippling fines, regulatory penalties, and lawsuits.
28

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 30 of 46
143. The consequences for Plaintiffs' employees would be severe. Thousands of families rely on Plaintiffs' insurance plans.
144. The consequences for Plaintiffs' businesses would be enormous. For example, with over 13,000 full-time employees, Hobby Lobby faces fines of about $26 million dollars per year if it drops employee insurance altogether, and additional fines of about $1.3 million per day if it chooses to offer insurance that does not include all of the mandated drugs and services. Plaintiffs will be subject to those penalties on January 1, 2013.
CLAIMS
COUNT I
Violation of the Religious Freedom Restoration Act Substantial Burden
145. Plaintiffs incorporate by reference all preceding paragraphs. 146. Plaintiffs' sincerely held religious beliefs prohibit them from providing coverage or access to coverage for abortion-causing drugs or devices or related education and counseling. Plaintiffs' compliance with these beliefs is a religious exercise. 147. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs. 148. The Mandate chills Plaintiffs' religious exercise. 149. The Mandate exposes Plaintiffs to substantial fines for their religious exercise.
29

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 31 of 46
150. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that they may no longer be permitted to offer health insurance.
151. The Mandate imposes a substantial burden on Plaintiffs' religious exercise. 152. The Mandate futihers no compelling governmental interest. 153. The Mandate is not narrowly tailored to any compelling governmental interest. 154. The Mandate is not the least restrictive means of furthering Defendants' stated interests. 155. The Mandate and Defendants' threatened enforcement of the Mandate violate Plaintiffs' rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 156. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Substantial Burden 157. Plaintiffs incorporate by reference all preceding paragraphs. 158. Plaintiffs' sincerely held religious beliefs prohibit them from providing coverage or access to coverage for abOt1ion-causing drugs or devices or related education and counseling. Plaintiffs' compliance with these beliefs is a religious exercise. 159. Neither the Affordable Care Act nor the Mandate is neutral. 160. Neither the Affordable Care Act nor the Mandate is generally applicable.
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Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 32 of 46
161. Defendants have created categorical exemptions and individualized exemptions to the Mandate.
162. The Mandate furthers no compelling governmental interest. 163. The Mandate is not the least restrictive means of fulihering Defendants' stated interests. 164. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs. 165. The Mandate chills Plaintiffs' religious exercise. 166. The Mandate exposes Plaintiffs to substantial fines for their religious exercise. 167. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that they may no longer be permitted to offer health insurance. 168. The Mandate imposes a substantial burden on Plaintiffs' religious exercise. 169. The Mandate is not narrowly tailored to any compelling governmental interest. 170. The Mandate and Defendants' threatened enforcement of the Mandate violate Plaintiffs' rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution. 171. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
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COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination 172. Plaintiffs incorporate by reference all preceding paragraphs. 173. Plaintiffs sincerely held religious beliefs prohibit them from providing coverage or access to coverage for abortion-causing drugs 01' devices or related education and counseling. Plaintiffs' compliance with these beliefs is a religious exercise. 174. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Plaintiffs to comply with both their religious beliefs and the Mandate. 175. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of Plaintiffs and others . 176. The Mandate and Defendants' threatened enforcement of the Mandate thus violate the Plaintiffs rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution. 177. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
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COUNT IV Religious DiscriminationViolation of the First and Fifth Amendments to the United States Constitution Free Exercise and Establishment Clauses; Due Process and Equal Protection 178. Plaintiffs incorporate by reference all preceding paragraphs. 179. By design, Defendants imposed the Mandate on some religious individuals and organizations but not on others, resulting in discrimination among religious objectors. 180. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of "religious employers." 181. Religious liberty is a fundamental right. 182. The "religious employer" exemption protects many religious objectors, but not Plaintiffs. 183. The "safe harbor" protects many religious objectors, but not Plaintiffs. 184. The ANPRM promises protection to many religious objectors, but not Plaintiffs. 185. The Mandate and Defendants' threatened enforcement of the Mandate thus violate Plaintiffs' rights secured to them by the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution and by Due Process Clause of the Fifth Amendment to the United States Constitution. 186. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
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COUNT V Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 187. Plaintiffs incorporate by reference all preceding paragraphs. 188. Plaintiffs believe and profess that providing abortion-causing drugs and devices violates their religious beliefs. 189. The Mandate would compel Plaintiffs to cooperate in activities through its provision of health insurance that are violations of Plaintiffs' religious beliefs. 190. The Mandate would compel Plaintiffs to provide education and counseling related to abortion-causing drugs and devices. 191. Defendants' actions thus violate Plaintiffs' right to be free from compelled speech as secured to it by the First Amendment to the United States Constitution. 192. The Mandate's compelled speech requirement is not narrowly tailored to a compelling governmental interest. 193. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
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Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 36 of 46
COUNT VI Violation ofthe First Amendment to the United States Constitution
Freedom of Speech Expressive Association 194. Plaintiffs incorporate by reference all preceding paragraphs. 195. The Mandate would compel Plaintiffs to cooperate in activities through their provision of health insurance that are violations of Plaintiffs' religious beliefs. 196. The Mandate would compel Plaintiffs to provide, through their provision of health insurance, education and counseling related to abortion-causing drugs and devices. 197. Defendants' actions thus violate Plaintiffs' right of expressive association as secured to it by the First Amendment of the United States Constitution. 198. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VII Violation of the Administrative Procedure Act
Lack of Good Cause 199. Plaintiffs incorporate by reference all preceding paragraphs. 200. Defendants' stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute "good cause." 201. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a
35

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 37 of 46
meaningful "consideration of the relevant matter presented." Defendants did not consider 01' respond to the voluminous comments they received in opposition to the interim final rule.
202. Therefore, Defendants have taken agency action not in observance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(0).
203. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VIII Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 204. Plaintiffs incorporate by reference all preceding paragraphs. 205. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on Plaintiffs and similar organizations and individuals. 206. Defendants' explanation for their decision not to exempt Plaintiffs and similar religious individuals from the Mandate runs counter to the evidence submitted by religious individuals during the comment period. 207. Thus, Defendants' issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rule fails to consider
36

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 38 of 46
the full extent of the Mandate's implications and does not take into consideration the evidence against it.
208. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT IX
Violation of the Administrative Procedure Act Agency Action Not in Accordance with Law Weldon Amendment Religious Freedom Restoration Act
First Amendment to the United States Constitution 209. Plaintiffs incorporate by reference all preceding paragraphs. 210. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008). 211. The Weldon Amendment provides that "[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions." 212. The Mandate requires issuers, including Plaintiffs, to provide coverage or access to coverage of all FDA-approved "contraceptives."
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Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 39 of 46
213. Some FDA-approved "contraceptives" cause abOltions. 214. As set forth above, the Mandate violates RFRA and the First Amendment. 215. Under 5 U.S.C . § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 216. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT X Violation of the Administrative Procedlll'e Act
Agency Action Not in Accordance with Law Affordable Care Act
217. Plaintiffs incorporate by reference all preceding paragraphs. 218. The Mandate is contrary to the provisions of the Affordable Care Act. 219. Section 1303(b)(I)(A) of the Affordable Care Act states that "nothing in this
titIe"- i.e., title I of the Act, which includes the provision dealing with "preventive
services"-"shall be construed to require a qualified health plan to provide coverage of [abortion] services ... as part of its essential health benefits for any plan year."
220. Section 1303 further states that it is "the issuer" of a plan that "shall determine whether or not the plan provides coverage" of abortion services.
221. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does.
38

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 40 of 46
222. The Mandate requires issuers, including Plaintiffs, to provide coverage 01' access to coverage for all Federal Drug Administration-approved contraceptives.
223. Some FDA-approved contraceptives cause abortions. 224. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 225. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
PHAYER FOR RELIEF Wherefore, Plaintiffs respectfully request that the Court:
a. Declare that the Mandate and Defendants' enforcement of the Mandate against Plaintiffs violate the First and Fifth Amendments to the United States Constitution;
b. Declare that the Mandate and Defendants' enforcement of the Mandate against Plaintiffs violate the Religious Freedom Restoration Act;
c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
d. Issue a permanent injunction prohibiting enforcement of the Mandate against Plaintiffs and other individuals and organizations that object on religious grounds to providing insurance coverage for abortion-causing drugs and devices, and related education and counseling;
39

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 41 of 46
e. Award Plaintiffs the costs of this action and reasonable attorney's fees; and
f. Award such other and further relief as it deems equitable and just.
JURY DEMAND
Plaintiffs request a trial by jury on all issues so triable.
*****
Respectfully submitted this 12th day of September, 2012.
/s/ Charles E. Geister III Charles E. Geister III, OBA No. 3311 Derek B. Ensminger, OBA No. 22559 HARTZOG, CONGER, CASON & NEVILLE 1600 Bank of Oklahoma Plaza 201 Robert S. KelT Avenue Oklahoma City, OK 73102 Telephone: (405) 235-7000 Facsimile: (405) 996-3403 cgeister@hartzoglaw.com densminger@hartzoglaw.com
-And -
S. Kyle Duncan, LA Bar No. 25038 (Motion/or Pro Hac Vice pending) Eric S. Baxter, D.C. Bar No. 479221 (Motion/or Pro Hac Vice pending) Lori Halstead Windham, D.C. Bar No. 501838 (Motion/or Pro Hac Vice pending)
THE BECKET FUND FOR RELIGIOUS LIBERTY
3000 K Street, N.W., Suite 220 Washington, D.C. 20007 Telephone: (202) 955-0095 Facsimile: (202) 955-0090 kduncan@becketfund.org
ATTORNEYS FOR PLAINTIFFS
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Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 42 of 46
VERIFICATION OF COMPLAINT ACCORDING TO 28 U.S.C. § 1746 I declare under penalty of pe~iury that the foregoing is tn.ie and correct to the best of my knowledge. Execlited 011 September 12. 2012
*1 certiJ.\' that 1 have the signed original of this document, which 1.1' available for inspection at any time by the Court or a party to this action.
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Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 43 of 46
VERIFICATION OF COMPLAINT ACCORDING TO 28 U.S.C. § 1746
I declare under penalty of pCI:iury that the foregoing is true and correct to the best of my knowledge. Executed on September 12.2012
*1 certify that 1 have the signed original of this document. which is available for inspection at any time by the Court or a party to this action.
42

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 44 of 46

VERIFICATION OJ? COMPLAINT ACCORDING TO 28 U.S.C. § ]746

I declare under penally or pel:iury that the roregoing is true and correct to the best of

my knowledge. Exeellted on September 12, 2012

~DP~
Steve Green* i9

*1 cert(fol that 1 have lite siglled original (~f' this document, which is (I va ilable for inspection at any time by the Court or a party to this actioll.

43

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 45 of 46
VERIFICATION 0." COMPLAINT ACCORDING TO 28 U.S.C. § 1746 I declare under penalty of peljury that the foregoing is true and correct to the best of Illy knowledge. Executed on September 12, 2012
Mart Green* *1 certif.'· that I have tile ,I'igned original of this document, which is available (or inspection at any lillie by the Court or a "arly 10 this actioll.
44

Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 46 of 46
VERIFICATION OF COMPLAINT ACCORDING TO 28 U.S.C. § 1746 I declare under penally of pel:iury that the foregoing is true and correct to the best of my knowledge, Executed all September 12, 2012
Darsee Lett* *1 certifi.' that 1 have the signed original of this document, which i,l' available for inspection 01 allY lime by Ihe Court or a parly to Ihis aclioll,
45

 
 Case 5:12-cv-01000-HE Document 36 Filed 10/15/12 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

HOBBY LOBBY STORES, INC., ET AL., )

)

Plaintiffs,

)

vs.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as the Secretary of the United )

States Department of Health and Human )

Services, ET AL.,

)

)

Defendants.

)

NO. CIV-12-1000-HE

ORDER

Various currently serving Members of Congress have sought leave to file an amicus

brief in this proceeding, seeking to argue for a broad interpretation and/or application of the

Religious Freedom Restoration Act of 1993 (“ RFRA”). The interests of m ovants in

addressing the application of the RFRA to thiscase appear to coincide wholly with those of

plaintiffs. Plaintiffs are represented by capable local counsel and by Washington D.C.-based

counsel who apparently specialize in issues of this sort. 1 As a result, there is no apparent

reason why the submissions of the named parties will not fully address the pertinent issues

as to the application of the RFRA. Further, the RFRA has been in place for almost twenty

years and has generated substantial comment and interpretational history already.

The motion for leave to file amicus brief [Doc. #34] is DENIED.

1Three of plaintiffs’ counsel indicate they are affiliated with The Becket Fund for Religious Liberty.

Case 5:12-cv-01000-HE Document 36 Filed 10/15/12 Page 2 of 2 IT IS SO ORDERED. Dated this 15th day of October, 2012.
2

 
 Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

HOBBY LOBBY STORES, INC., MARDEL, INC., DAVID GREEN, BARBARA GREEN, STEVE GREEN, MART GREEN, AND DARSEE LETT,

Plaintiffs, v.

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,

Case No. CIV-12-1000-HE

Defendants.

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND OPENING BRIEF IN SUPPORT

Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 2 of 31
TABLE OF CONTENTS
TABLE OF AUTHORITIES..............................................................................................iii INTRODUCTION ............................................................................................................... 1 FACTUAL BACKGROUND ............................................................................................. 2
I. THE GREEN FAMILY AND HOBBY LOBBY ..................................................... 2 II. THE HHS MANDATE ............................................................................................. 3 III. THE MANDATE’S IMMINENT IMPACT ON PLAINTIFFS............................... 5 IV. PROCEDURAL HISTORY...................................................................................... 6 ARGUMENT....................................................................................................................... 6 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. .......................... 7
A. The mandate violates the Religious Freedom Restoration Act............................ 7 1. Plaintiffs’ sincere abstention from providing abortion-causing drugs and devices qualifies as a religious exercise. ............................................... 8 2. The mandate substantially burdens Plaintiffs’ religious exercise by forcing them to choose between following their convictions and paying enormous fines. ................................................................................ 9 3. The mandate cannot satisfy strict scrutiny. ................................................ 10 a. The mandate f urthers no compelling int erest because the government has issued numerous exemptions and becau se contraception is already widely available............................................. 11 b. Defendants already have numerous less r estrictive means of furthering their interest. ........................................................................ 15
B. The mandate violates the Free Exercise Clause................................................. 17 1. The mandate is not neutral because it exempts some religious employers while compelling others. .......................................................... 18 2. The mandate is not generally applicable due to it s numerous exemptions. ................................................................................................ 19
i

Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 3 of 31 II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IN THE
ABSENCE OF PRELIMINARY RELIEF. ............................................................ 20 III. THE BALANCE OF EQUITIES TIPS IN PLAINTIFFS’ FAVOR. ..................... 21 IV. AN INJUNCTION IS IN THE PUBLIC INTEREST. ........................................... 22 CONCLUSION ................................................................................................................. 22 CERTIFICATE OF SERVICE .......................................................................................... 24
EXHIBITS Newland v. Sebelius, No. 12-1123 (D. Colo. July 27, 2012) ........................................Ex. 1
ii

Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 4 of 31
TABLE OF AUTHORITIES
Cases Abdulhaseeb v. Calbone,
600 F.3d 1301 (10th Cir. 2010) ............................................................................... 9, 10
Ashcroft v. ACLU, 542 U.S. 656 (2004) ....................................................................................................... 8
Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) ................................................................................. 6, 7
Belmont Abbey College v. Sebelius, No.11-1989 (D.D.C. July 18, 2012)............................................................................... 5
Brown v. Entm’t Merch. Ass’n, 131 S. Ct. 2729 (2011) ................................................................................................. 14
Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) ..................................................................................................... 11
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) .............................................................................................. passim
City of Boerne v. Flores, 521 U.S. 507 (1997) ..................................................................................................... 11
Comanche Nation v. United States, 2008 WL 4426621 (W.D. Okla. Sept. 23, 2008) ........................................................... 9
Elrod v. Burns, 427 U.S. 347 (1976) ..................................................................................................... 20
Employment Div. v. Smith, 494 U.S. 872 (1990) ........................................................................................... 9, 17, 19
Gonzales v. O Centro Espirita Beneficente do Vegetal, 546 U.S. 418 (2006) .............................................................................................. passim
Grutter v. Bollinger, 539 U.S. 306 (2003) ..................................................................................................... 17
Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ................................................................................. 8, 20
iii

Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 5 of 31
Newland v. Sebelius, No. 12-1123 (D. Colo. July 27, 2012) .................................................................. passim
O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) ................................................................................. 6, 22
Okla. ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107 (10th Cir. 2006) ..................................................................................... 7
Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir. 2005) ................................................................................... 22
Sherbert v. Verner, 374 U.S. 398 (1963) ....................................................................................... 7, 8, 10, 15
Thiry v. Carlson, 78 F.3d 1491 (10th Cir. 1996) ....................................................................................... 9
Thomas v. Collins, 323 U.S. 516 (1945) ..................................................................................................... 11
Thomas v. Review Bd., 450 U.S. 707 (1981) ....................................................................................................... 8
Turner Broad. Sys. Inc. v. FCC, 512 U.S. 624 (1994) ..................................................................................................... 11
United States v. Friday, 525 F.3d 938 (10th Cir. 2008) ................................................................................. 9, 12
United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002) ..................................................................... 7, 9, 11, 15
United States v. Playboy Ent’mt Group, Inc., 529 U.S. 803 (2000) ............................................................................................... 11, 15
Wheaton Coll. v. Sebelius, No. 12-1169 (D.D.C. Aug. 24, 2012) ............................................................................ 5
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ......................................................................................................... 20
Wisconsin v. Yoder, 406 U.S. 205 (1972) ............................................................................................. 7, 8, 10
iv

Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 6 of 31
Statutes 26 U.S.C. § 4980D..................................................................................................... 4, 6, 10 26 U.S.C. § 4980H............................................................................................... 4, 6, 10, 12 26 U.S.C. § 5000A............................................................................................................. 12 29 U.S.C. § 1132 ....................................................................................................... 4, 6, 10 29 U.S.C. § 1185d ........................................................................................................... 4, 6 42 U.S.C § 300gg–13 .......................................................................................................... 4 42 U.S.C. § 18011 ............................................................................................................. 12 Religious Freedom Restoration Act ........................................................................... passim Religious Land Use and Institutionalized Persons Act ................................................... 8, 9 Other Authorities Department of Health and Human Services, Office of the Assistant
Secretary of Health, Office of Population Affairs, Announcement of Anticipated Availability of Funds for Family Planning Services Grants .................... 16 Facts on Publicly Funded Contraceptive Services in the United States ........................... 16 FDA Birth Control Guide .................................................................................................... 4 Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans...................................................................................... 12 Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius................................................................................................... 14, 19 U.S. CONST., amend. I ............................................................................................. 2, 17, 20 Women’s Preventive Services: Required Health Plan Coverage Guidelines ..................... 4 Regulations 45 C.F.R. § 147.130....................................................................................................... 4, 18 75 Fed. Reg. 41726.............................................................................................................. 4 76 Fed. Reg. 46621.............................................................................................................. 4
v

Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 7 of 31 77 Fed. Reg. 16501.............................................................................................................. 5 77 Fed. Reg. 8725.......................................................................................................... 4, 12 Rules FED. R. CIV. PROC. 65.......................................................................................................... 1 W.D. OKLA. CIV. R. 7.1....................................................................................................... 1
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Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 8 of 31
INTRODUCTION Plaintiffs, a devout Christian f amily, have built one of largest and m ost successful retail chains in America. Their faith is woven into their business. It is ref lected in what they sell, in how they advertise, in how they treat employees, in how much they give to charity, and in the one day of the week when their stores are closed . In a profound way, their business is a ministry. The Defendant government officials have issued a rule (the “mandate”) that requires millions of American business owners, including Plaintiffs, to cover abortion -inducing drugs and devices in employee health insurance. Plaintiffs’ religious convicti ons forbid them from complying. Thanks to the mandate, the pr ice of those convictions will be steep. Plaintiffs face fines of millions of dollars if they do not give in. The fines start January 1, 2013. Levying fines on someone for following their faith is wrong. It is alien to our American traditions of individual liberty, religious tolerance, and limited government. It also violates federal law and the United States Constitution. Plaintiffs have therefore filed this lawsuit and simultaneously brought this motion for preliminary injunction pursuant to Federal Rule of Civil Procedure 65 and Local Civil Rule 7.1. In the only similar decision to date, a federal district court in Colorado granted a preliminary injunction to another family business who faced imminent exposure to t he mandate. See Newland v. Sebelius, No. 1:12-cv-1123, slip op. at 17-18 (D. Colo. July 27, 2012) (order granting preliminary injunction) (Ex. 1). Plaintiffs are in the same position, and deserve the same remedy. Preliminary relief is warranted because the mandate
1

Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 9 of 31

violates the Religio us Freedom Restoration Act (RFRA) and the F irst Amendment, and

because Plaintiffs otherwise face the imminent prospect of irreparable harm to their

religious freedom, to their businesses, and to their employees’ well-being.

FACTUAL BACKGROUND

I.

THE GREEN FAMILY AND HOBBY LOBBY

As set f orth in P laintiffs’ Verified Complaint, incorporated her ein, Plaintiffs are a

family that, through various trusts, owns and operates Hobby Lobby Stores, Inc. Verified

Compl. (“VC”) ¶ ¶ 2-3, 18-24, 38. Founded by Plaintiff David Green in 1970, Hobby

Lobby has grown from a s mall picture frame company into one of the nation’s leading

arts and crafts chains, operating over 500 stores in o ver 40 with over 13,000 full-time

employees. VC ¶¶ 2, 18, 32-34. Steve is Hobby Lobby’s President, Darsee a Vice-

President, and Mart a Vice-CEO and the founder and CEO of Mardel, Inc., an affiliated

chain of Christian boo kstores. VC ¶¶ 18-22, 36-38. The Green f amily operates Hobby

Lobby and Mardel through a management trust. VC ¶¶ 23-24, 38.

The Greens run Hobby Lobby according to their Christian faith. VC ¶¶ 39-47. As

explained in the company’s statement of purpose, they are committed to “[h]onoring the

Lord in all we do by operating the company in a manner consistent with Biblical

principles.” VC ¶ 42. The family members sign a S tatement of Faith and a Trustee

Commitment obligating them to co nduct themselves and their businesses according to

their faith. VC ¶ 38.

That faith is woven into how the family runs Hobby Lobby. The company takes out

hundreds of full-page ads every Christmas and Easter celebrating the religious nature of

2

Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 10 of 31
the holidays. VC ¶ 47. The stores carry religiously themed items and play Christian music. VC ¶ 43. The family monitors merchandise, marketing, and operations to make sure all ref lect their beliefs, and the y avoid participating in activities they believe to be immoral or harmful to others. VC ¶¶ 43-44. They give millions from their profits to fund ministries around the world. VC ¶¶ 39-40. Chaplains, spiritual counseling, and religiously-themed financial management classes are made available for employees who wish to participate. VC ¶ 51. And, as i s well-known, the Greens close all stores on Sundays to give employees a day of rest, even though they risked losing millions in sales by doing so. VC ¶ 45.
The Green f amily also provides excel lent employee health insurance through a self funded plan. VC ¶ 52. As with all aspects of their business, the Greens believe it i s imperative that these benefits honor their religious convictions. Id. Because of their beliefs about unborn hu man life, their prescription coverage excludes contraceptive devices that can cause abortion (such as IUDs) and pregnancy-terminating drugs like RU486. VC ¶¶ 53-54. When a recent review of the company’s health plans revealed that a drug formulary inadvertently included two drugs that could cause abortion—namely the “morning after pill” ( Plan B), and the “week -after pill” (Ella)—the family immediately excluded them. VC ¶ 55. The Green f amily cannot in good consci ence knowingly offer coverage for abortion-causing drugs or devices. VC ¶¶ 53-58. II. THE HHS MANDATE
Federal regulations now mandate that employer health insurance include free coverage for all FDA-approved contraceptive drugs and steri lization methods. 42 U.S.C
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Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 11 of 31
§ 300gg–13(a)(4); 75 Fed. Reg. 41726 , 41728 (July 19, 2010); 7 6 Fed. Reg. 46621 , 46626 (Aug. 3, 2011); VC ¶¶ 94-95. This mandate includes drugs and devices—such as “Plan B,” “Ella” and certain IUDs—that may prevent implantation of a fertilized egg in the womb. VC ¶ 95.1 The mandate is enf orceable by government penalties, regulatory action, and private lawsuits. 26 U.S.C. §§ 4980H, 4980D; 29 U.S.C. §§ 1185d, 1132; VC ¶¶ 135, 142, 144. Certain non-profit religious employers—essentially those qualifying as houses of worship under the Internal Revenue Code—are exempt from the mandate. See 45 C.F.R. § 147.130 (a)(1)(iv)(B)(1)-(4) (setting forth exemption criteria); VC ¶ 123. For non-exempt employers (such for-profit business owners), the mandate takes ef fect beginning with the first insurance plan year after August 1, 2012. 42 U.S.C. § 300gg 13(b); 76 Fed. Reg. 46621, 46623; VC ¶¶ 121, 132.
In response to public outcry,2 the government announced a “safe harbor,” which delays the mandate’s enforcement for one year against certain non-profit, non-exempt organizations. VC ¶¶ 125-26. The government also announced its intention to formulate an additional rule during that year that would address those org anizations’ concerns. See “Advance Notice of Proposed Rulemaking” (ANPRM), 77 Fed. Reg. 16501 (published

1

See Women’s Preventive Services: Required Health Plan Coverage Guidelines,

available at http://www.hrsa.gov/womensguidelines/ (last visited Sept. 9, 2012); FDA

Birth Control Guide, available at http://www.fda.gov/downloads/ForConsumers

/ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited Sept. 9, 2012).

2

See 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011); 77 Fed. Reg. 8725, 8726 (Feb. 15,

2012) (discussing public comments). Further, currently pending against the mandate are

26 lawsuits by more than 80 organizations and individ uals. See Dkt [#5], Notice of

Related or Companion Cases (Sept. 12, 2012).

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Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 12 of 31

Mar. 21, 2012); VC ¶ 129-30. Neither the safe harbor nor the proposed rulemaking apply to for-profit businesses. VC ¶¶ 126, 130. III. THE MANDATE’S IMMINENT IMPACT ON PLAINTIFFS
The mandate will take effect against Plaintiffs on January 1, 2013. See VC ¶¶ 131-32 (alleging that Plai ntiffs’ plan year begins on January 1). Because they own a f or-profit business, Plaintiffs are not covered by the religious employer exemption, the safe harbor, or the proposed future rulemaking. VC ¶¶ 124, 126, 130.3 Nor are Plaintiffs’ health plans “grandfathered” under the Affordable Care Act. VC ¶ 59. Consequently, in less than four months, Plaintiffs must either violate their faith by covering abortion-causing drugs, or expose themselves to ruinous penalties. VC ¶¶ 134-44.
Hobby Lobby currently has over 13,000 full-time employees. VC ¶ 136. If Hobby Lobby continues to offer employee health insurance without the mandated items on January 1, 2013 , it will incur penalties of about $1.3 million per day, VC ¶ 144; 26 U.S.C. § 4980D, and will expose itself to private enforcement suits. 29 U.S.C. §§ 1185d(a)(1), 1132. If it instead ceases to offer em ployee insurance, it will face annual penalties of about $26 million per year. VC ¶ 144; 26 U.S.C. § 4980H . Mardel faces similar penalties with respect to its 372 full-time employees. VC ¶ 137.

3

The fact that Plaintiffs do not not q ualify for the safe harbor and could not benefit

from the proposed rulemaking sharply distinguishes their situation from that of Belmont

Abbey College and Wheaton College, whose lawsuits were recently dismissed without

prejudice for lack of standing and ripenes s. See Belmont Abbey College v. Sebelius,

No.11-1989, slip op. a t 14-22 (D.D.C. July 18, 2012) (order dismissing lawsuit without

prejudice); Wheaton Coll. v. Sebelius, No. 12-1169, slip op. at 7-18 (D.D.C. Aug. 24,

2012) (same).

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Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 13 of 31
As they do every fall, Plaintiffs are now planning for the 2013 insurance plan year. VC ¶¶ 140-41. This is a complex and time-consuming process. Id The approaching mandate casts grave uncertainty on Plaintiffs’ ability to provide insurance for thousands of employees and their families next January—less than four months’ time. VC ¶ 142. A lapse in coverage would be disastrous f or Plaintiffs’ businesses and for the em ployees and their families who depend on Plaintiffs’ insurance. VC ¶¶ 142-43. IV. PROCEDURAL HISTORY
Plaintiffs filed their complaint on September 12, 2012, challenging the mandate on a variety of constitutional and statutor y grounds. They simultaneously filed this motion seeking preliminary injunctive relief.
ARGUMENT To obtain a preliminary injunction, Plaintiffs must show (1) a likelihood of success on the merits, (2) a threat of irreparable har m, which (3) outweighs any harm to the no nmoving party, and that (4) the injunction would not adversely affect the publi c interest. Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012). Plaintiffs need n ot meet the heightened standard for “disfavored” injunctions because the relief sought would preserve the status quo and require no go vernment action. See Newland, slip op. at 6 -7 (citing O Centro Espir ita Beneficente Unia o do Vegetal v. Ashcroft, 389 F .3d 973, 975 (10th Cir. 2004 ) (en banc), aff ’d and rem anded, Gonzales v. O Centro Espirit a Beneficente do Vegetal, 546 U.S. 418 (2006)). Moreover, if the equities strongly favor Plaintiffs, they may show likelihood-of-success simply by showing the i ssues are “so serious, substantial, difficult, and doubtful as to make the[m] ripe for litigation and
6

Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 14 of 31

deserving of more deliberate investigation.” Newland, slip op. at 7-8 (citing Okla. ex rel.

Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F .3d 1107, 1113 (10th C ir.

2006)). In any event, Plaintiffs would be en titled to preli minary relief even under the

heightened standard. See, e.g., Awad, 670 F.3d at 1126 (declining to decide whether “less

demanding standard” applies because plaintiff “meets the heightened standard”).

I.

PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.

A. The mandate violates the Religious Freedom Restoration Act.

Under RFRA, the f ederal government “may substantially burden a person’s exercise

of religion onl y if it d emonstrates that a pplication of the burde n to the person (1) is in

furtherance of a compelling governmental interest; and (2) is the le ast restrictive means

of furthering that compelling governmental interest.” 42 U.S.C. §2000bb-1(b); see also,

e.g., United States v. Hardman, 297 F.3d 1116, 1125 (10th Cir. 20 02) (en banc). RFRA

thus restored strict scrutiny to religious exercise claims. Gonzales, 546 U.S. at 424, 431;

see also 42 U.S.C. § 2000bb(b)(1) (RFRA “restore[s] the compelling interest test as set

forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)).”4 A plaintiff makes a prima facie case under RFRA by showing the government

substantially burdens its sincere religio us exercise. Kikumura v. Hurley, 242 F .3d 950,

960 (10th Cir. 2001). The burden then shifts to the government to show that “the

compelling interest test is sati sfied through application of the challenged law ‘to the

4

Although RFRA is unconstitutional as applied to States, it “independently remains

applicable to federal officials.” Hardman, 297 F.3d at 1126 (quotes omitted). Further,

RFRA applies “to all Federal law, and the implementation of that law, whether st atutory

or otherwise, an d whether adopted bef ore or after November 16, 1993.” 42 U.S .C. §

2000bb-3(a).

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Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 15 of 31

person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonazles, 546 U.S. at 430-31 (quoting 42 U.S.C. § 2000bb-1(b)).5
1. Plaintiffs’ sincere abstention from providing abortion-causing drugs and devices qualifies as a religious exercise.
RFRA broadly defines “religious exercise” to “in clude[] any exercise of religion, whether or not compelled by, or centra l to, a s ystem of religious b elief.’” 42 U.S .C. § 2000bb-2(4), as amended by 42 U.S.C. § 2000cc-5(7)(A); see also Kikumura, 242 F.3d at 960 (explaining that “ a religious exercise ne ed not be m andatory for it to be protected under RFRA”).
The Green family has maintained a commitment to running their business in harmony with their faith despite risking the lo ss of millions in pr ofits. VC ¶¶ 39-49. They conscientiously oppose supporting activities or products they regard as i mmoral or harmful to others. VC ¶¶ 43-44. This includes abortion-causing drugs and devices, which are explicitly excluded from their insurance p lans. VC ¶ 53-56. Abstaining for religious reasons from providing such items easily qualifies as “religious exercise,” just as much as abstaining from work on certain days, see Sherbert v. Verner, 374 U.S. 3 98 (1963), refusing to manufacture objectionable items, see Thomas v. Review Bd., 450 U.S. 707 (1981), or providing alternative education for children, see Wisconsin v. Yoder, 406 U.S. 205 (1972)). See also 42 U.S.C. § 20 00bb(b)(1) (incorporating Sherbert and Yoder in RFRA); and see Employment Div. v. Smith, 494 U.S. 872, 8 77 (1990) (observing that

5

These burdens are the same at the preli minary injunction stage as at trial. Id. at

429-30 (citing Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)).

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Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 16 of 31

“the ‘exercise of religion’ often involves not only belief and profession but t he
performance of (or abstention from) physical acts”) (emphasis added).
2. The mandate substantially burdens Plaintiffs’ religious exercise by forcing them to choose betw een following thei r convictions and payin g enormous fines.
The government “substantially burdens” religious exercise when a law “ha[s] a
substantial effect on the exercise of religious belief .” United States v. Friday, 525 F.3d
938, 947 (10t h Cir. 2 008) (quoting Hardman, 297 F.3d at 1126-27). Under RFRA’s
companion statute, RLUIPA, the Tenth Circuit finds a substantial burden when the
government:
(1) “requires participation in an activit y prohibited by a sincer ely held religious belief,”
(2) “prevents participation in conduct motivated by a sincerel y held religious belief,” or
(3) “places substantial pressure on an adherent either not to engage in conduct motivated by a si ncerely held religious belief or to engage in conduct contrary to a sincerely held religious belief[.]”
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010).6 The mandate easily
qualifies as a substantial burden under the first and third prongs of that test.
As to the f irst prong, the m andate compels Plaintiffs to provide employees with
insurance coverage they believe implicates them in an immoral practice. VC ¶¶ 53-56. As
to the t hird prong, the mandate pressures Plaintiffs by exacting a steep price for

6

See also Comanche Nation v. United States, 2008 WL 4426621, at *3 (W.D. Okla.

Sept. 23, 2008) (observing that Tenth Circ uit had defined “substantial burden” under a

pre-RLUIPA version of RFRA as a governm ent action which “must ‘significantly inhibit

or constrain conduct or expression’ or ‘deny reasonable opportunities to engage in’

religious activities”) (citing Thiry v. Carlson, 78 F.3d 1491, 1495 (10th Cir. 1996)).

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Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 17 of 31
maintaining their beliefs. The Greens can continue to exercise their faith only by dropping insurance and facing penalties of about $26 million per year, or by offering insurance without the mandated coverage and facing penalties of $1.3 million per day (as well as the prospect of private lawsuits). 26 U.S.C. §§ 4980D, 4980H; 29 U.S.C. § 1132 (a); VC ¶¶ 142-44. This is “a Hobson’s choice—an illusory choice where the only realistically possible course of action trenches on an adherent’s sincerely held religious belief.” Abdulhaseeb, 600 F.3d at 1615.
The Supreme Court has invalidated indirect pressure on religious exercise that was less weighty than the direct and severe pressure imposed by the mandate. See, e.g., Sherbert, 374 U.S. at 404 (potential loss of unemployment benefits for refusing to work on Sabbath placed “ unmistakable” pressure on plaintiff to aband on that obs ervance); Yoder, 406 U.S. at 20 8, 218 (five dollar fine on plain tiffs’ religious practice was “not only severe, but inescapable”). Fining someone for exercising his faith is th e paradigm example of a substantial burden. See, e.g., Sherbert, 374 U.S. at 403-04 (explaining that forcing choice between plaintiff’s faith and unemployment benefits “puts the same kind of burden upon the free exercise of religion as would a fine imposed against [plaintiff] for her Saturday worship”).
3. The mandate cannot satisfy strict scrutiny. Consequently, Defendants must “‘demonstrate[] that a pplication of the burden to [Plaintiffs]’ represents the least restri ctive means of advancing a compelling interest.” Gonzales, 546 U.S . at 423 (quoting 42 U.S. C. § 2000bb -1(b)); Hardman, 297 F.3d at 1126. If a less re strictive alternative would serve Defendants’ purpose, “the le gislature
10

Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 18 of 31
must use that alternative.” United States v. Playboy Ent’mt Group, Inc., 529 U.S. 803, 813 (2000) (emphasis added). RFRA imposes “the most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). Defendants cannot meet it.
a. The mandate furthers no compelling interest because the government has issued numerous exemptions and because contraception is alre ady widely available.
To demonstrate a co mpelling interest, Defendants must show the mandate furthers interests “of the highest order.” Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993); Hardman, 297 F.3d at 1127. This determination “is not to be made in the a bstract” but rather “in the ci rcumstances of this case” by examining how the interest is “addressed by the law at issue.” Cal. Democratic Party v. Jones, 530 U.S. 567, 584 (2000); see also Lukumi, 508 U.S. at 546 (rejecting City’s assertion that protecting public health was co mpelling “in the context of” the ordinances at is sue). “Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation” of religious exercise. Thomas v. Collins, 323 U.S. 516, 530 (1945); Hardman, 297 F.3d at 1127. Further, Defendants “must demonstrate that the r ecited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Turner Broad. Sys. Inc. v. FCC, 512 U.S. 624, 664 (1994).
The mandate aims to increase access to contraceptives, a measure Defendants believe will promote women’s health and equality. 77 Fed. Reg. 8725, 8727-28 (Feb. 15, 2012). However weighty that interest is in the abs tract, Defendants cannot demonstrate that it is “compelling” in the context of the mandate. An interest cannot be “compelling” where
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Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 19 of 31

the government “fails to enact feasible measures to restrict other conduct producing

substantial harm or alleged harm of the same sort.” Lukumi, 508 U.S. at 546-47; Friday,

525 F.3d at 958. The mandate provides a textbook example of such a failure.

Defendants have chosen not to mandate contraceptive coverage in m illions of

policies. Over 100 million “grandfathered” plans are not r equired to comply with the

mandate; nor are “small employers” who employ over 20 million people. See Newland, slip op. at 1 3-14 (citing 42 U.S. C. § 180 11; 26 U.S.C. § 4980H(c)(2)).7 Churches and

religious orders are exempt. 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012). Certain religious

groups who object to insurance and members of “health car e sharing ministries” are

exempt from the Affordable Care Act altogether and therefore need no t cover

contraceptives. 26 U.S.C. § 5000A(d)(2)(A), (B), (ii). The “safe harbor” gives c ertain

non-exempt religious non-profits an additional year before the mandate will be enforced

against them, and the government recently expanded the safe harbor to include additional

non-profits. VC ¶ ¶ 125-26 & n.2 . This wide-ranging scheme of exemptions, as Judg e

Kane correctly found, “completely undermines any compelling interest in a pplying the

preventive care coverage mandate to Plaintiffs.” Newland, slip op. at 15.

The Supreme Court’s decision in Gonzales compels this conclusion. In that R FRA

case, the government claimed a compelling interest in uniformly applying federal

7

See also Keeping the Health Plan Yo u Have: The Af fordable Care Act and

“Grandfathered” Health Plans, available at http://www.healthcare.gov/news

/factsheets/2010/06/keeping-the-health-plan-you-have-grandfathered.html) (last visited

Sept. 9, 2012); h ttp://www.census.gov/econ/smallbus.html (last vi sited Sept. 9, 20 12).

HHS has pred icted that a majority of large e mployers, employing more than 50 million

Americans, will con tinue to use grandf athered plans through at least 2014, and that a

third of small employers with between 50 and 100 employees may do likewise. Id.

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Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 20 of 31
narcotics laws and pr otecting public hea lth justified refusing to exempt a church’s religious use of a dangerous narcotic (hoasca, which the church used in a tea). The Court unanimously rejected the argument, because the narcotics laws themselves authorized exemptions and the government had already granted one for a different hallucinogen (peyote) used by a larger religious group (Native Americans). Gonazles, 546 U.S. at 43235. The Court thus held that “the Government failed to de monstrate, at the preli minary injunction stage, a c ompelling interest in barring the [ church’s] sacramental use of hoasca.” Id. at 439.
In light of Gonzales, Defendants’ alleged interests in increased contraceptive access and promoting health cannot qualify as “compelling” where t hey have deliberately chosen not to mandate contraceptive co verage in over 100 million insurance poli cies. Gonzales found that one exemption to the narcotics laws for a different drug undermined the government’s “compelling” interest in uniformity and health. Here, Defendants have crafted numerous exemptions, applicable to various secular and religious organizations, for the same drugs. Moreover, as in Gonazles, several of those exemptions (i.e., the “religious employer” exemption from the mandate, and the other religious exemptions from the Affordable Care Act) were granted to relieve the sa me burden Plaintiffs claim. In light of the exemptions already recognized, “RFRA makes clear that it is the obligation of the courts to consider whether exceptions are required” for those like Plaintiffs, whose faith is burdened by the mandate in a manner just as severe as the millions of persons who have already been exempted. Gonzales, 546 U.S. at 434.
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Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 21 of 31
A related reason why Defendants’ asserted interest cannot be compelling assert is that the problem Defendants target is minuscule. Defendants cannot legitimately assert there is a grave, widespread crisis of access to contraceptives justifying their coercive mandate, because they have confirmed publicly that the mandated drugs are already widely available. In a January 20, 2012 press release, Defendant Sebelius explained that:
• “[B]irth control … is the most commonly taken drug in America by young and middle-aged women”;
• “[C]ontraceptive services are avail able at sites such a s community health centers, public clinics, and hospitals with income-based support”;
• “[L]aws in a majority of states…already require contraception coverage in health plans[.]”
Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited Sept. 9, 2012). Defendants therefore cannot credibly claim an interest “of the highest order” in marginally increasing access to contraceptives—much less in doing so by conscripting Plaintiffs’ participation against their own faith. See Brown v. Entm’t Merch. Ass’n, 131 S. Ct. 2729, 2741 n.9 (2011) (noting that “the govern ment does not have a compelling int erest in each marginal percentage point b y which its goals are advanced”).
Judge Kane’s conclusion in Newland is therefore inescapable: “The government has exempted over 190 million health plan participants and beneficiaries from the preventive care coverage mandate; this massive exemption completely undermines any compelling interest in applying the … mandate to Plaintiffs.” Slip op. at 14-15.
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b. Defendants already have numerous less restrictive means of furthering their interest.
Even assuming a compelling interest, the m andate still f ails strict scrutin y because there are other readil y-available means of enhancing contraception coverage that are far less burdensome to P laintiffs’ rights. See, e.g., Hardman, 297 F. 3d at 1130 (expla ining that, under str ict scrutiny, government must “demonstrate that no alternative fo rms of regulation would combat such abuses with out infringing Fir st Amendment rig hts”) (quoting Sherbert, 374 U.S. at 4 07) (emphasis in original). Defendants must employ feasible less restrictive alternatives, instead of burdening religious objectors. See, e.g., Playboy Ent’mt Group, 529 U.S. at 813 (explaining that, if a less r estrictive alternative would serve the government’s purpose, “the legislature must use that alternative”). Further, the government must adduce specific evidence that its chosen means is the least restrictive option—“[m]ere speculation is not enough t o carry this burden.” Hardman, 297 F.3d at 1130.
Defendants have a host of readily available alternatives for expanding contraceptive access that would avoid any need to conscript religious objectors. Defendants could:
• Directly provide the drugs at issue, or directly provide insurance coverage for them.
• Allay the costs of the drugs through subsidies, reimbursements, tax credits or tax deductions.
• Empower willing actors—for instance, physicians, pharmaceutical companies, or the interest groups who champion free access—to deliver the drugs themselves and to sponsor education about them.
• Use their own considerable resources to inf orm the public that these drugs are available in a wide array of publicly-funded venues.
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This array of alternatives is real, not hypothetical. On its own website, Defendant HHS

announces that it plans to spend over $300 million in 2012 to provide contraceptives directly through Title X funding.8 Moreover, the federal government, in partnership with

state governments, has constructed an extensive funding network designed to increase

contraceptive access, education, and use, including:

• $2.37 billion in public outlays for family planning in fiscal year 2010.
• $228 million in fiscal year 2010 for Title X of the Public Health Service Act, the only federal program devoted specifically to supporting family planning services.
• $294 million in state spending for family planning in fiscal year 2010. 9
The same report notes that public funding for family planning increased 31% from fiscal

year 1980 to f iscal year 2010. Id. Nothing prevents Defendants from using su ch pre-

existing sources to further their interest in increasing women’s access to contraceptives.

As Judge Kane aptly concluded in Newland:

Defendants have failed to ad duce facts establishing that government provision of contraceptive services will ne cessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventive health care coverage to women. Once again, t he current existence of analogous programs heavily weighs against such an argument.

8

See Department of Health and Hu man Services, Office of the Assistant Secre tary

of Health, Off ice of Population Affairs, Announcement of Antici pated Availability of

Funds for Family Planning Services Grants, available at

https://www.grantsolutions.gov/gs/preaward/previewPublicAnnouncement.do?id=12978

(last visited Sept. 10, 2012) (announcing that “[t]he President’s Budget for Fiscal Y ear

(FY) 2012 requests approximately $327 million for the Title X F amily Planning

Program”).

9

Facts on Publicly Funded Contraceptive Services in the United States

(Guttmacher Inst. May 2012) (citations o mitted), available at

http://www.guttmacher.org/pubs/fb_contraceptive_serv.html (last visited Sept. 10,

2012).

16

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Newland, slip op. at 17. Using those a lready-existing public programs would further Defendants’ goals without coercing Plaintiffs to violate their faith.
Moreover, there is no indication that Defendants even considered using these kinds of alternatives, which automatically violates the least restricti ve means requirement. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 339 (2003) (narrow tailoring requires “serious, good faith consideration of workable…alternatives that will ac hieve” the stated goal) . If Defendants cannot show they even investigated less restrictive alternatives—especially in light of the f act that numerous public comments alerted them to religious employers’ objections to the mandate—their rule cannot survive strict scrutiny.
*** In sum, Plaintiffs are likely to prevail on th eir claim that the mandate violates th e Religious Freedom Restoration Act. B. The mandate violates the Free Exercise Clause. In addition to violating RFRA, the mandate also violates the Free Exercise Clause because it is not “neutral and genera lly applicable.” Lukumi, 508 U.S. 20 at 54 5 (citing Employment Division v. Smith, 494 U.S. 45 72, 880 (1990) ). The mandate is theref ore subject to strict scrutiny which, for the reasons discussed above, it can not meet. See Lukumi, 508 U.S. at 546 (explaining that s uch laws “un dergo the most rigor ous of scrutiny”).10
10 Neutrality and general applicability overlap and “failure to satisfy one requirement is a likely indication that the other has not been satisfied.” Lukumi, 508 U.S. at 531.
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1. The mandate is not ne utral because it exem pts some reli gious employers while compelling others.
The mandate fails neutrality at the most basic level by explicitly discriminating among organizations on a religious basi s. See, e.g., Lukumi, 508 U.S. at 533 (explai ning that “the minimum requirement of neutrality is that a la w not discriminate on its face”). On its face, the religious employer exemption divides religious objectors into favored and disfavored classes, forgetting Lukumi’s warning that “[a] law lacks facial neutrality if it refers to a religious pr actice without a secular meaning discernible from the language or context.” Lukumi, 508 U.S. at 533 (emphasis added).
That religious employer exemption protects only certain religious bodies, which it defines by reference to their internal religious characteristics. Namely, it exempts only organizations whose “purpose” is to inculcat e religious values; wh o “primarily” employ and serve co -religionists; and who qualif y as churches or religious orders under the tax code. 45 C.F.R. § 147.130(a)(iv)(B)(1)-(4). This openly does what Lukumi says a neutral law cannot do: refer to religious qualities without any discernible secular reason. Lukumi, 508 U.S. at 5 33. There is no concei vable secular purpose, for instance, in li miting conscience protection to religious g roups that “primarily serve” co-religionists while denying it to those (like Plaintiffs) who serve persons regardless of their faith. Whatever motivated these criteria, they practice religious “discriminat[ion] on [their] face” and therefore trigger strict scrutiny. Lukumi, 508 U.S. at 533.
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2. The mandate is not generally applicable due to its numerous exemptions. The mandate also fails the related requ irement of general applicabi lity. A law is not generally applicable if it regulates religiously-motivated conduct, yet leaves unregulated similar secular conduct. See, e.g., Lukumi, 508 U.S. at 544-45 (finding animal cruelty and health ordinances not generall y applicable because they failed “to prohibit nonrel igious conduct that endanger[ed] these interests in a similar or greater degree”—such as animal hunting, euthanasia, and medical testing). Such inconsistency suggests that “society is prepared to impose [the law] upon [religious adherents] but not upon itself,” which is the “precise evil . . . the requirement of general applicability is designed to prevent.” Id. at 545. Because they fail to i mpose “across-the-board” treatment of regulated conduct, Smith, 494 U.S. at 884, such laws are subject to strict scrutiny. Under those standards, the mandate is not generally applicable. While the purpose of the mandate is to increase access to all FDA -approved contraceptives, well over 100 million organizations and plans are categorically exempted from providing the mandated preventive services. See supra Part I.A.3.a (describing exemptions for grandfathered plans, small employers, and certain re ligious groups). T hus, Defendants deliberately chose not t o pursue their goal of increased contraceptive access with respect to a broad array of plans and i ndividuals, while at the same time pursuing it against non-exempt religious objectors like Plaintiffs. See Newland, slip o p. at 13 -14 (finding Defendants’ uniformity argument “undermined by the existence of numerous exemptions to t he preventive care coverage mandate”). This is the classic case of a law that f ails the basic requirement of general applicability.
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* * * Because the mandate cannot qualify as a neu tral and g enerally applicable law under the Free Exercise Clause, Defendants must clear the high bar of strict scrutiny to justify their decision not to exempt other religious objectors, like Plaintiffs, from the mandate. As discussed above, they cannot do so. See supra Part I.A.3. Consequently, Plaintiffs are likely to prevail on their claim under the Free Exercise Clause. II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF
PRELIMINARY RELIEF. It is settled that a potential violation of Plaintiffs’ rights under the First Amendment and RFRA threatens irreparable harm. See, e.g, Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (noting that “courts have held that a pla intiff satisfies the irrepara ble harm analysis by alleging a v iolation of RFRA”); Newland, slip op. at 8 (noting “it is well-established that the potential violation of Plaintiffs’ constitutional and RFRA righ ts threatens irreparable harm”) (citation omitted); see also Elrod v. Burns, 427 U.S . 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”). These harms will fall on Plaintiffs imminently. “Plaintiffs need only demonstrate that absent a preli minary injunction, ‘[they] are likely to suf fer irreparable har m before a decision on the merits can be rendered.’” Newland, slip. op. at 8 (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). Plaintiffs do not qualify for the one-year safe harbor and therefore face the certain prospect of violating the mandate in less than five months’ time—by January 1, 2013—and incurring steep penalties. And, as explained
20

Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 28 of 31
above, the disrupti ons occasioned b y this impending deadline are occurring now, as Plaintiffs arrange their 2013 policies. See, e.g., Newland, slip op. a t 8-9 (reasoning th at “[i]n light of the exte nsive planning involved in prepa ring and providing its employee insurance plan, and th e uncertainty that this matter will be resolved before the coverage effective date, P laintiffs have adequatel y established that the y will suffer imminent irreparable harm absent injunctive relief”). This factor therefore strongly weighs in favor of preliminary injunctive relief. III. THE BALANCE OF EQUITIES TIPS IN PLAINTIFFS’ FAVOR.
Granting preliminary injunctive relief will merely prevent Defendants from enforcing the mandate against the named Plaintiffs. This will preserve the status quo between the parties, counseling in favor of granting pr eliminary relief. See Newland, slip op. at 6-7 (applying normal standard because the injunction would preserve the status quo). Defendants have already exempted a number of churches and church-related entities from the mandate, delayed enforcement of the mandate against many religious organizations until August 2013, and given many non-religious employers an open-ended exemption in the form of grandfathering. Preventing Defendants from enforcing the mandate against Plaintiffs would therefore not “substanti ally injure” Defendants’ interests. Balanced against any de minimis injury to Defendants is the real and immediate threat to Plaintiffs’ religious liberty. Moreover, Plaintiffs face the imminent prospect of severe fines for dropping employee insurance, which would gravely impact employees and their families.
21

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In sum, any minimal harm to Def endants in temporarily not enforcing the mandate “pales in comparison to the po ssible infringement upon Plaintiffs’ constitutional and statutory rights.” Newland, slip op. at 9. IV. AN INJUNCTION IS IN THE PUBLIC INTEREST.
Finally, a preliminary injunction will serve the public interest by protecting Plaintiffs’ First Amendment and RFRA rights. The public has no inte rest in enforcing a regulation against religious business owners that coerces them to violate their own faith. See, e.g., Newland, slip op. at 9-10 (finding “‘there is a strong public interest in the free exercise of religion even where that interest may conflict with [another statutory scheme]’”) (quoting O Centro, 389 F .3d at 1010); see also, e.g., Pac. Frontier v. Pleasant Grove City , 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public i nterest.”). Furthermore, any interest of Defendants in u niform application of the mandate “is … undermined by the creation of exemptions for certain religious organizations and employers with grandfathered health insurance pl ans and a temporar y enforcement safe harbor for non-profit organizations.” Newland, slip op. at 9.
CONCLUSION Plaintiffs respectfully ask the Court to e nter a preli minary injunction against Defendants in accordance with the relief sought in Plaintiffs’ Complaint.
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Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 30 of 31
Respectfully submitted this 12th day of September, 2012.
/s/ Charles E. Geister III Charles E. Geister III, OBA No. 3311 Derek B. Ensminger, OBA No. 22559 HARTZOG, CONGER, CASON & NEVILLE 1600 Bank of Oklahoma Plaza 201 Robert S. Kerr Avenue Oklahoma City, OK 73102 Telephone: (405) 235-7000 Facsimile: (405) 996-3403 cgeister@hartzoglaw.com densminger@hartzoglaw.com - And S. Kyle Duncan, LA Bar No. 25038 (Motion for Pro Hac Vice pending) Eric S. Baxter, D.C. Bar No. 479221 (Motion for Pro Hac Vice pending) Lori Halstead Windham, D.C. Bar No. 501838 (Motion for Pro Hac Vice pending) THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street, N.W., Suite 220 Washington, D.C. 20007 Telephone: (202) 955-0095 Facsimile: (202) 955-0090 kduncan@becketfund.org ATTORNEYS FOR PLAINTIFFS
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Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 31 of 31

CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was filed through the Court’s ECF filing system on September 12, 2012, and that a cop y was ser ved via first-class mail, postage prepaid, on the following:

Eric Holder United States Attorney General 950 Pennsylvania Ave. NW Washington, DC 20530

/s/ Charles E. Geister III Charles E. Geister III

24

 
 Case 5:12-cv-01000-HE Document 45 Filed 11/19/12 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

HOBBY LOBBY STORES, INC., et al., )

)

Plaintiffs,

)

vs.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as the Secretary of the United )

States Department of Health and Human )

Services, et al.,

)

)

Defendants.

)

NO. CIV-12-1000-HE

ORDER

Plaintiffs, Hobby Lobby Stores, Inc., Mardel,Inc., David Green, Barbara Green, Steve

Green, Mart Green and Darsee Lett sued Kathleen Sebelius, Secretary of the United States

Department of Health and Hum an Services (“HHS”), and other governm ent officials and

agencies challenging regulations issued under the Patient Protection and Affordable Care

Act, Pub.L. No. 111-148, 124 Stat. 119 (2010), aasmended by the Heath Care and Education

Reconciliation Act, Publ. L. No. 111-152, 124 Stat. 1029 (2010) (“Affordable Care Act” or

“ACA”). Specifically, plaintiffs object to the preventive c are coverage regulations or

mandate which they allege forces them to “provide health insurance coverage for abortion-

inducing drugs and devices, as well as related education and counseling.” Complaint, ¶ 8.

Plaintiffs contend the mandate violates their statutory and constitutional rights and seek both

declaratory and injunctive relie f. Presently at issue is plaintiffs’ m otion for preliminary

injunction in which they ask the court to prohibit defendants from enforcing the mandate

against them. A hearing on the motion was held on November 1, 2012.

Case 5:12-cv-01000-HE Document 45 Filed 11/19/12 Page 2 of 28
This lawsuit is one of many challenging various aspects of the Affordable Care Act. While the legislation is controversial, as another judge has stated in similar circumstances, “this Court's personal views on the necessity, prudence, or effectiveness of the Affordable Care Act are of no m oment whatsoever. The only issues concerning the ACA presently before this Court are those raised by the parties: nam ely, whether [the preventive services coverage provision] passes muster under the Constitution of the United States, and whether it violates the Religious Fre edom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq.” Mead v. Holder, 766 F.Supp.2d 16, 19 (D.D.C. 2011),aff’d on other grounds,Nat'l Fed'n of Indep. Bus. v. Sebelius, ___U.S. ___ (2012).
Background The ACA, signed into law on March 23, 2010, effected a variety of changes to the healthcare system. The Act includes a preventive services provision which provides: A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a m inimum provide coverage for and shall not impose any cost sharing requirements for ... (4) with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration1 for purposes of this paragraph. 42 U.S.C. § 300gg–13(a). The Health Resources and S ervices Administration (HRSA) commissioned the Institute of Medicine (IOM) to develop recommendations for the HSRS guidelines. The IOM published a report which proposed, among other things, that insurance plans cover “[a] ll Food and Drug Adm inistration approved contraceptive m ethods,
1The Health Resources and Services Administration (HRSA) is an agency within HHS. 2

Case 5:12-cv-01000-HE Document 45 Filed 11/19/12 Page 3 of 28

sterilization procedures, and patient education and counseling for all wom

en with

reproductive capacity.”2 Included am ong the FDA-approved contraceptive m ethods are

diaphragms, oral contraceptive pills, emergency contraceptives such as Plan B and ulipristal,

commonly known as the m orning-after pill a nd the week-after pill, respectively, and

intrauterine devices.3

On August 1, 2011, HRSA adopted IOM’s recommendations in full, see 76 Fed.Reg.

46621; 45 C.F.R. § 147.130, and, on February 15, 2012, HHS, the Department of Labor and

the Department of Treasury published rules finalizing the HRSA guidelines. Unless

grandfathered or otherwise exempt, employers’ group health plans must provide coverage

conforming with the guidelines for plan years beginning on or after August 1, 2012. 75

Fed.Reg. 41726, 41729.

Grandfathered health plans are not subject to the preventive services provision of the

ACA. 75 Fed.Reg. 34538–01 (June 17, 2010).4 Some religious employers also are exempt

from providing plans that cover contraceptive services. To qualify as a “religious epmloyer”

an employer must satisfy the following criteria:

(1) The inculcation of religious values is the purpose of the organization; (2)

2See http://www.hrsa.gov/womensguidelines/.
3Seewww.fda.gov/forconsumers/byaudience/forwomen/ucm118465.htm. FreePublications/UCM282014.pdf (last updated Aug. 2012).
4A grandfathered plan is one that was in existence on March 23, 2010, and which has not undergone any of a defined set of changes. See 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.7151251; 45 C.F.R. § 147.140. The government estimates that by 2013, a majority of group health plans will lose their grandfathered status.
3

Case 5:12-cv-01000-HE Document 45 Filed 11/19/12 Page 4 of 28
The organization primarily employs persons who share the religious tenets of the organization; (3) The organization serves primarily persons who share the religious tenets of the organizati on; (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(I) or (iii) of the Internal Revenue Code of 1986, as amended. 45 C.F.R. § 147.130(a)(1)(iv)(B); 76 Fed.Reg. 46621–01, 46623. A temporary enforcement safe-harbor provision applies to other non-profit organizations that do not qualify for any other exemption and “do not provide som e or all of the contraceptive coverage otherwise required, consistent with any applicable State law, because of the religious beliefs of the organization.” 77 Fed.Reg. 16501, 16502 (Mar ch 21, 2012); 77 Fed.Reg. 8725 (Feb. 15, 2012).5 Finally, an employer with fewer than 50 employees is not required to provide any health insurance plan. 26 U.S.C. § 4980H(c)(2)(A). The individual plaintiffs (collectively the “Greens”), are m embers of a family that owns and operates Hobby Lobby Stores, Inc. and Mardel, Inc., privately held, for-profit corporations. Hobby Lobby operates 514 arts and crafts stores in 41 states with 13,240 fulltime employees. Mardel is a bookstore and educational supply company that specializes in Christian materials. It has 35 stores in 7 states with 372 employees. Both Hobby Lobby and Mardel are operated through a m anagement trust which owns all the voting stock in the corporations.6 Each member of the Green family is a trustee of the trust.
5The government is in the process of fina lizing amendments to the preventive services coverage regulations to accommodate the religious objections of non-exempt, non-grandfathered religious organizations to providing coverage for contraceptive services. See 77 Fed.Reg. at 8728.
6It is not altogether clear from the parties’ submissions whether Hobby Lobby and Mardel are wholly owned by the Green plaintiffs or just wholly controlled by them, with some portion of the non-voting, equity ownership of the companies held by others. See Compl aint, ¶38. The
4

Case 5:12-cv-01000-HE Document 45 Filed 11/19/12 Page 5 of 28
Although Hobby Lobby and Mardel are for-profit, secular corporations, the Gre en family operates them according to their Christian faith. “As part of their religious obligations” the Green family provides health insurance coverage to Hobby Lobby’s and Mardel’s employees through a self-insured plan. Complaint, ¶52. However, “[t]he Green family’s religious beliefs prohibit them from deliberately providing insurance coverage for prescription drugs or devices inconsistent with their faith, in particular abortion-causing drugs and devices. Hobby Lobby’s insurance policies have long explicitly excluded – consistent with their religious beliefs – contraceptive devices that might cause abortions and pregnancy-termination drugs like RU-486.” Id. at ¶¶ 53-54. The governm ent does not dispute the sincerity of the Greens’ beliefs.
Hobby Lobby and Mardel, as secular, for-profit companies, do not satisfy the ACA’s definition of a “religious employer” and are ineligible for the protection of the safe-harbor provision. Their health plans also are not grandfathered under the Act. The mandate takes effect as to the corporations’ e mployee health plan on January 1, 2013, as that is the date upon which the plan year begins. Plaintiffsassert that they “face an unconscionable choice: either violate the law, or violate their faith.” Id. at ¶ 133. If Hobby Lobby fails to provide the mandated coverage, plaintiffs contend thecorporation will incur penalties of about $1.3 million a day. Mardel also will be fined if it does not comply with the mandate. Plaintiffs seek a preliminary injunction to prevent defendants from enforcing the mandate against them,
complaint alleges only voting control. The distinction does not affect the disposition of the pending motion.
5

Case 5:12-cv-01000-HE Document 45 Filed 11/19/12 Page 6 of 28
arguing that the m andate violates their right to free exercise of religion under the First Amendment and their statutory rights under the Religious FreedomRestoration Act of 1993. (“RFRA”), 42 U.S.C. § 2000bb-1.
Legal Standard A preliminary injunction is an extraordinary remedy and should “not be issued unless the movant’s right to relief is ‘clear and unequivocal.’” Heideman v. South Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003) (quoting Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). To obtain a preliminary injunction the moving party must establish that: (1) [the movant] will suffer irreparable injury unless the injunction issues; (2) the threatened injury ... outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood [of success] on the merits. Id. (quoting Resolution Trust Corp. v. Cruce , 972 F.2d 1195, 1198 (10th Cir.1992). Plaintiffs, as the m ovants, have the burden of dem onstrating that each factor tips in their favor. Id. at 1188-89. The Tenth Circuit has applied a relaxed “probability of success” requirement when the moving party has “established that the three‘harm’ factors tip decidedly in its favor.” Id. at 1189. The movant in such cases “need only show questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation.” Id. (internal quotations omitted). Plaintiffs urge application of the “‘less rigorous fair-ground-for-litigation standard.’” Heidem an, 348 F.3d at 1189 (quoting Sweeney v. Bane, 996 F.2d 1384, 1388 (2d Cir.1993)).
6

Case 5:12-cv-01000-HE Document 45 Filed 11/19/12 Page 7 of 28
The relaxed standard does not apply if the injunction “is one that alters the status quo and therefore is disfavored.” Northern Natural Gas Co. v. L.D. Drilling, Inc,.___ F.3d ___, ___ , 2012 WL 4902833 at *4 (10th Cir. 2012). Defendants argue that plaintiffs are not seeking to maintain the status quo because, prior to the enactment of the mandate, Hobby Lobby provided coverage for emergency contraceptives that could cause an abortion. The court is not persuaded that the coverage was due to anything other than a m istake. Upon discovery of the coverage, Hobby Lobby immediately excluded the two drugs, Plan B and Ella, from its prescription drug policy. Defendants do not dispute that the com pany’s policies have otherwise long excluded abortion-inducing drugs. Here plaintiffs are not seeking a disfavored injunction, but rather ask the court to preserve the status quo.
The court agrees with plaintiffs that the questions presented here are “serious, substantial, difficult and doubtful.” However, an additional limitation on the applicability of the “less rigorous fair-ground-for-litigation standard” exists. The Tenth Circuit has concluded the “‘liberal definition of the ‘porbability of success’ requirement’” does not apply “‘where a prelim inary injunction seeks to stay governm ental action taken in the public interest pursuant to a statutory or regulatoryscheme.’” Nova Health Systems v. Edmondson, 460 F.3d 1295, 1298 n.6 (10th Cir. 2006) (quoting Heidem an, 348 F.3d at 1189).7 Here, plaintiffs challenge a regulatory requirement imposed pursuant to a statutory or regulatory
7Defendants argue that in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), the Supreme court abrogated the more flexible standardfor the preliminary injunction. The court does not have to reach that issue, due to its conclusion that, because plaintiffs are seeking to enjoin the enforcement of an action taken, pursuant to a st atutory scheme, they “must meet the traditional substantial likelihood of success’ standard.” Nova Health Systems, 460 F.3d at 1298 n.6.
7

Case 5:12-cv-01000-HE Document 45 Filed 11/19/12 Page 8 of 28
scheme. As a result, the more liberal “fair ground for litigation” standard does not apply. One court in this circuit has reached a contrary conclusion8. In Newland v. Sebilius,
___F.Supp.2d ___ , 2012 WL 3069154 (D.Colo. 2012), a factually sim ilar case, the court concluded the relaxed “likelihood of success” standard should be applied because the “government’s creation of numerous exceptions to the preventive care coverage mandate has undermined its alleged public interest.” Id. at 2012 WL 3069154, a t *5. However, for purposes of determining the appropriate preliminary injunction standard, the question is not whether the public interest is strong or compelling, but rather whether it is in the public interest at all. And as to that question, the court is obliged to defer to the determination of Congress. As the Tenth Circuit observed in a som ewhat similar context, applying the Heideman rule, “we presume that all governmental action pursuant to a statutory scheme is ‘taken in the public interest.’” Aid for Women v. Foulston, 441 F.3d 1101, 1115 n. 15 (10th Cir. 2006)(more relaxed standard inapplicable to plaintiff’s challenge to a Ka nsas statute requiring reporting of minors’ voluntary sexual activity). In like manner, this court presumes the challenged government actions at issue here are taken in the public inte rest within the meaning of the Heidem an standard, notwithstanding the existence of exceptions to the coverage requirement.9
8Two district courts in other circuits have issued preliminary injunctions in similar cases, employing different standards than those adopted by the Tenth Circuit. See Legatus v. Sebeli,u_s__ F.Supp.2d ___, 2012 WL 5359630 (E.D. Mich. Oct. 31,2012) and Tyndale House Publishers, Inc. v. Sebelius, ___ F.Supp.2d ___, 2012 WL 5817323 (D.D.C. Nov. 16, 2012).
9And, as noted above, the presumption is made without regard to the court’s owns views of whether the ACA or the particular regulatory requirements at issue are sound public policy.
8

Case 5:12-cv-01000-HE Document 45 Filed 11/19/12 Page 9 of 28
Similarly unpersuasive is plaintiff’s argum ent that the m ore flexible prelim inary injunction standard applies here because they are not attacking the entire statutory scheme, just a small part of it. First, the Heideman exception, as articulated by the Tenth Circuit, does not require the challenge to be to an entire statutory scheme. Instead, it refers to attempts to “stay governmental action taken in the public interest” that is “pursuant to a statutory or regulatory scheme.” Heidem an, 348 F.3d at 1189 (internal quotations om itted). The mandate at issue here is both (1) an action inthe public interest, as determined by Congress, and (2) one taken pursuant to the statute. That is all that is required. Moreover, none of the cases plaintiffs cite offer any explicit support for their view and at least soemof them clearly involve challenges to less than a whole “scheme.” For example, in Foulston, the challenge was not to the entire schem e (which im posed a reporting requirem ent on various professionals for instances of physical, mental or emotional abuse or neglect or sexual abuse of a child), but to a lim ited aspect of it (m andatory reporting of consensual sex be tween minors).
As plaintiffs are challenging a coverage requirement imposed as part of a regulatory or statutory scheme, the “fair ground for litig ation standard” does not apply. To obtain injunctive relief, they must show a substantial likelihood of success on the merits, in addition to the standard’s three other requirem ents. The requirement for showing a substantial likelihood of success on the merits is determinative of the present m otion for the reasons which follow. First Amendment – Free Exercise of Religion
9

Case 5:12-cv-01000-HE Document 45 Filed 11/19/12 Page 10 of 28
The First Amendment’s Free Exercise Clause states that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” Plaintiffs maintain they exercise their religion by complying with their religious beliefs which prohibit them from providing coverage, or access to coverage, for abortion-causing drugs or devices or related education and counseling. The mandate forces them, plaintiff’s argue, to violate their religious beliefs and substantially burdens their religious exercise.
The question of whether plaintiffs are likely to prevail on their constitutional claims requires a threshold de termination of whether the particular plaintiffs have constitutional “free exercise” rights subject to being violated . As to the Greens, th e answer to that is obviously yes. However, as to the corporations — Hobby Lobby and Mardel — the court concludes otherwise.
Corporations have constitutional rights in some circumstances, such as the right to free speech, but the rights of corporate persons and natural persons are not coextensive. Courts have not extended all constitutional rights to all corporations. Corporations do not possess a “right to exercise a privilege against self-incrim ination.” Application to Enforce Admin.Subpoenas Duces Tecum of the § v. Knowles, 87 F.3d 413, 416 n.3 (10th Cir.1996), They have been denied “[c] ertain‘purely personal’ guarantees ... because the ‘historic function’ of the particular guarantee has beenlimited to the protection of individuals.” First Nat'l Bank of Boston v. Bellotti , 435 U.S. 765, 778 n. 14 (1978) (citing United States v. White, 322 U.S. 694, 698-701 (1944)). “Whether or not a particular guarantee is ‘purely personal’ or is unavailable to corporations for som e other reason depends on the nature,
10

Case 5:12-cv-01000-HE Document 45 Filed 11/19/12 Page 11 of 28
history, and purpose of the particular constitutional provision.” Id. The purpose of the free exercise clause is “ot secure religious liberty in the individual
by prohibiting any invasions thereof by civil authority.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223 (1963) (em phasis added). Churche s and other religious organizations or religious corporations have been accorded protection under the free exercise clause, see Hosanna–Tabor Evangelical Lutheran Church & Sch. v. EEOC , ___ U.S.___, ___, 132 S.Ct. 694, 706 (2012); Lukum i, 508 U.S. at 531-32, because believers “exercise their religion through religious organizations.” Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 341 (1987) (BRENNAN, J. concurring) (internal quotations om itted). Howeve r, Hobby Lobby and Ma rdel are not religious organizations. Plaintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion. See Anselmo v. Cnty. of Shasta, ___ F.Supp.2d ___, 2012 WL 2090437, at *12 (E.D.Cal 2012) (“Although corporations and limited partnerships have broad rights, the court has been unable to fnid a single RLUIPA case protecting the religious exercise rights of a non-religious organization such as Seven Hills.”)1.0 The court concludes plaintiffs Hobby Lobby and Mardel do not have constitutional free exercise rights as corporations and that they therefore ca nnot show a likelihood of success as to any
10The court has considerable doubt whether thecorporations would have standing to assert a claim on behalf of the Greens. See generally Grac,e451 F.3d at 670 (discussing prerequisites for associational standing as stated by the Supreme Court in Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)). However, as the Greens are parties appearing and asserting their own rights, it is unnecessary to belabor the issue.
11

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constitutional claims they may assert. Pl aintiffs’ ability to show a likelihood of success therefore depends on evaluation of the claims of the individual plaintiffs — the Greens.
The question of whether the Greens can establish a fre e exercise constitutional violation by reason of restrictions or requirements imposed on general business corporations they own or control involves largely uncharted waters. However, the court concludes it is unnecessary, as to the constitutional claims, to resolve those questions here as the challenged statutory scheme and regulations are substantially likely to survive constitutional scrutiny in any event.
“While the First Amendment provides absolute protection to religious thoughts and beliefs, the free exercise clause does not prohibit Congress and local gove rnments from validly regulating religious conduct.” Grace United Methodist Church v. City Of Cheyenn, e 451 F.3d 643, 649 (10th Cir. 2006). “[ T]he right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Emp’t Div., Dep’t of Human Res. of Oregon v. Sm ith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in judgment)). If a law is both neutral and generally applicable, it only has to be “rationally related to a legitim ate governmental interest to survive a constitutional challenge.” Grace,451 F.3d at 649. A law that burdens a religioupsractice and is not neutral or generally applicable is subject to strict scrutiny. Id. “[U]nless it is narrowly tailored to advance a compelling governmental interest,” the law violates the Free Exercise Clause. Id.
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To analyze plaintiffs’ free exercise claims the court must first determine the level of scrutiny to apply. Id. A law is neutral if its object is “something other than the infringement or restriction of religious practices.” Id. at 649-50. Citing Church of the Lukum i Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), plaintiffs argue that the m andate is not neutral because it exem pts some religious employers from compliance while compelling others to provide coverage for preventive services. They contend it discriminates between religious objectors, exempting “only organizations whose ‘purpose’ is to inculcate religious values; who ‘primarily’ employ and serve co-religionists; and who qualify as churches or religious orders under the tax code.” Plaintiffs’ motion, p. 18,
Carving out an exem ption for defined religious entities does not m ake a law nonneutral as to others. Plaintiffs do not allege that “the objecotf [the mandate] is to infringe upon or restrict practices because of their religious motivation.” Lukumi, 508 U.S. at 533 (emphasis added);11 see Grace, 451 F.3d at 649-50. They do not dispute that the mandate’s purpose is secular in nature and intended to prom ote public health and gender equa lity. “[T]here is no evidence that the exception isin any way based on religious categorization or discrimination.” Grace, 451 F.3d at 652 (quoting Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 701 (10th Cir.1998));see Axson-Flynn v. Johnson, 356 F.3d 1277, 1294 (10th Cir. 2004) (“A rule that is discriminatorily motivated and applied is not a neutral rule of general applicability.”);Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1232-33
11Plaintiffs also do not argue that the preventive care coverage regulations lack “facial neutrality.” See Lukumi, 508 U.S. at 533.
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(10th Cir. 2009); Catholic Charities of Diocese of Albany v. Serio , 859 N.E.2d 459, 464 (N.Y. 2006). In fact, the religious employer exemption and the safe harbor provision suggest the opposite of what plaintiffs argue and must show to warrant strict scrutiny of the mandate. Using well established criteria to determine eligibility for an exemption based on religious belief, such as the nonsecular nature of the organization and its nonprofit status, the ACA, through its implementing rules and regulations, both recognizes and protects the exercise of religion. The fact that the exceptions do not extend as far as plaintiffs would like does not make the mandate nonneutral. O’Brien v. United States Dep’t of Health and Human Servs., ___ F.Supp.2d ___, ___, 2012 WL 4481208, at *8 (E.D. Mo. 2012) (“[T] he religious employer exemption does not com promise the neutrality of the regula tions by favoring certain religious em ployers over others. Rather . . . the religious em ployer exemption presents a strong argument in favor of neutrality . . . .”). As the New York Court of Appeals explained in Se rio, a case involving a free exercise challenge to a state law requiring employers providing coverage for prescription drugs to include coverage for contraceptives:
The neutral purpose of the challenged portions of the [health care law] —to make contraceptive coverage broadly available to New York women—is not altered because the Legislature chose to exempt some religious institutions and not others. To hold that any religious exem ption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions—and thus to restrict, rather than promote, freedom of religion. Serio, 859 N.E. 2d at 464. “[Th]e neutrality inquiry leads to one conclusion: The [preventive services coverage regulations] [did not have] as their object the suppression of religion.” Lukumi, 508 U.S. at 542.
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The second requirement of the constitutional test is that “laws burdening religious practice must be of general applicability.”Id. “The Free Exercise Clause protect[s]religious observers against unequal treatment, and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.” Id. at 542-43 (internal citation and quotations omitted).
Plaintiffs contend the mandate is not generally applicable because of the num erous exemptions, including those for grandfathered plans and religious employers. However, the mandate does not “pursue[] ... governmental interests only against conduct m otivated by religious belief.” Id. at 545. As the court noted in O’Brien, 2102 WL 4481208, at *8, “[t]he regulations in this case apply to all employers not falling under an exemption, regardless of those employers' personal religious inclinations.” See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1134 (9th Cir. 2009) (“Pharm acies and pharm acists who do not have a religious objection to Plan B m ust comply with th e rules to the sam e extent—no mor e and no less—than pharmacies and pharm acists who m ay have a religious objection to Plan B. Therefore, the rules are generally applicable.”).
As the court concludes the mandate is neutral and of general applicability, it is subject only to rational basis scrutiny under the First Am endment. Sm ith, 494 U.S. at 883-85. Plaintiffs do not argue that there is no legitimate government interest for the mandate or that the regulations are not rationally related to protect that interest, and the court finds no basis on the present showing to conclude the law,under the rational basis test, is unconstitutional.
Applying these principles, the court concludes plaintiffs have not established a 15

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likelihood of success as to their constitutional claims. The corporations lack free exercise rights subject to being violated and, as the challenged statutes/regulations are neutral and of general applicability as contemplated by the constitutional standard, plaintiffs are unlikely to successfully establish a constitutional violation in any event. Religious Freedom Restoration Act
Plaintiffs’ claims under the Religious Freedom Restoration Act of 1993 pre sent a closer question. RFRA applies standards wh ich are more protective of religious exercise than the constitutional standard. It prohibits the federal gover nment from substantially burdening a person’s exercise of religion, unless the governme nt demonstrates that application of the burden to the person is the least restrictive m eans of furthering a compelling governmental interest. 42 U.S.C. § 2000bb-1; Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006). The Act “provides a statutory claim to individuals whose religious exercise is burdened by the federal governemnt.” United States v. Wilgus, 638 F.3d 1274, 1279 (10th Cir. 2011). Congress passed RFRA to restore the compelling interest test that had been applied to laws substantially burdening religious exercise before the Supreme Court’s decision in Smith.
RFRA provides that: (a) In general Government shall not substantially burden a persons' exercise of religion even if the burden results froma rule of general applicability, except as provided in subsection (b) of this section. (b) Exception
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Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive m eans of furthering that compelling governmental interest. 42 U.S.C. § 2000bb–1. As was the case with plaintiffs’ constitutional claim s, a threshold question here is whether all the plaintiffs ar e in a position to assert rights under RFRA. That depends on whether particular plaintiffs qualify as a “person” within the m eaning of the statute. The Greens are unquestionably “persons” under the statute, entitled to assert its potential application to them. Less clear is the status of Hobby Lobby and Mardel. RFRA does not include a specific definition of “person.” Plaintiffs argue that Hobby Lobby and Mardel qualify as “persons” based on the general definition included in 1 U.S.C. § 1. That section provides: “In determining the meaning of any Act of Congress, unless the context indicates otherwise ... the words ‘person’ and ‘whoever’ includes corporations ... as well as individuals.” As used in § 1, “‘[c]ontext’ . . . means the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts, and this is simply an instance of the words' ordinary meaning . . . .” Rowland v. Cal. Mens'Colony, 506 U.S. 194, 199 (1993). While context “has a narrow compass, the ‘indication’ contemplated by 1 U.S.C. § 1 has a broader one.” Id. at 200. The qualification “unless the context indicates otherwise,” is intended to assist the court “in the awkward case where Congress provides no particular definition, but the definition in 1 U.S.C. § 1 seesmnot to fit.” Id. That
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is the situation here. General business corporations do not, separate and apart from the
actions or belief systems of their individual owners or employees, exercise religion. They
do not pray, worship, observe sacraments or takeother religiously-motivated actions separate
and apart from the intention and direction of their individual actors. Religious exercise is,
by its nature, one of those “purely personal” matters referenced in Bellotti which is not the
province of a general business corporation. As applied to 1 U.S.C. § 1 and the question of
whether these corporations are “persons” within the meaning of RFRA, the context “indicates
otherwise.”
“Plaintiffs assert that “[i] t is settled law that corporations m ay exercise religion.”
Plaintiffs’ reply, p. 8. However, the cases they cite, Gonzaleasnd Lukumi involved religious organizations, not general business corporations. 12 The same reasons behind the court’s
conclusion that secular, for-profit corporations do not have First Am endment rights under
the Free Exercise Clause support a determination that they are not “persons” for purposes of the RFRA.13 This conclusion is buttressed by RFRA’s reference to principles of standing:
12Centro Espirita Beneficiente Uniaodo Vegetal is described in Gonzalesas a religious sect. There is no indication it was incoprorated. The church in Lukumiwas a non-profit corporation, 508 U.S. at 525, and nothing in Gonzales indicates the religious sect operated a s ecular, for profit business. Plaintiffs also cite Prime ra Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d 1295 (11th Cir.2006)for the proposition ht at a commercial corporation’s rights can include religious exercise. However, in resolving the issue of whether the plaintiff had standing to assert a violation of free exercise rights under th e First Amendment, the Eleventh Circuit stated: “we easily conclude that Primera, as an incorporated religious organization, stated a section 1983 claim for the alleged violation of its ... free exercise rights.” Id. at 1306.
13Plaintiffs argue that “the Supreme Court has at least twice allowed commercial proprietors to assert religious exercise claims against regulations impacting their businesses,” citing United States v. Lee, 455 U.S. 252 (1982) and Braunfeld v. Brown,366 U.S. 599 (1961). Plaintiffs’ reply,
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“Standing to assert a claim or defense under this section shall be governed by the ge neral
rules of standing under Article III of the Constitution.” 42 U.S.C. § 2000bb-1(c).
In any event, the court concludes that plaintiffs have not established a likelihood of
success as to any claims asserted by Hobby Lobby and Mardel under RFRA. The question
then becomes whether plaintiffs have established a likelihood of success as to the RFRA
claims of the Greens.
“[A] plaintiff establishes a prima facie claim under RFRA by proving the following
three elements: (1) a substantial burden imposed by the federal government on a (2) sincere
(3) exercise of religion.”14 Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001). Once
the plaintiff establishes these elements, “the burden shifts to the government to demonstrate
p. 4 . However, neither case appears to have involveda corporation and, in any event, it is clear that the religious beliefs that were allegedly being interfered with were those of the owners. Braunfeld, 366 U.S. at 601 (“[T]he only question for consideration is whether the statute interferes with the free exercise of appellants' religion.. . . Each of the appellants isa member of the Orthodox Jewish faith.”). Plaintiffs also rely on two Ninth Circuit cases, Storman’s, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) and EEOC v. Townley Eng’g & Mfg. Co. , 859 F.2d 610 (9th Cir. 1988). Neither supports their argument. In Storman’s, 586 F.3d at 1119, the Ninth Circuit stated “We decline to decide whether a for-profit corporation can assert its own rights under the Free Exercise Clause and instead examine the rights at issue as those of the corporate owners.” Similarly, in Townley, 859 F.2d at 619-20, the court stated: “ Because Townley is merely the instrument through and by which Mr. and Mrs. Townley express their religiousbeliefs, it is unnecessary to address the abstract issue whether a for profit corporati on has rights under the Free Exercise Clause independent of those of its shareholders and officers. Townley presetns no rights of its own different from or greater than its owners' rights.”) .
14The term “religious exercise” is broadl y defined to include “any exercise of religion, whether or not compe lled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc5(7)(A); 42 U.S.C. § 2000bb-2( 4); see generally Smith, 494 U.S. at 877 (“But the ‘exercise of religion’ often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.”.)
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that ‘application of the burde n’ to the claim ant ‘is in furtherance of a com pelling governmental interest’ and ‘ is the least restrictive m eans of furthering that com pelling governmental interest.’” Id. at 961-62 (quoting 42 U.S.C. § 2000bb–1(b)); Gonzales,546 U.S. at 428-30.
The second and third elements of plaintiffs’ prima facie case are not in dispute. No one questions that the Greens’ beliefs are sinceerly held or that the mandate burdens, at least indirectly, the Greens’ “own exercise of [their] sincerely held religious beliefs.” 15 Abdulhaseeb v. Calbone, 600 F.3d 1301, 1314 (10th Cir. 2010), cert. denied, ___ U.S. ___ (2010). The critical question is whether the mandate imposes a “substantial” burden on the Greens for purposes of the RFRA. Defendants contend that any burden theamndate imposes on the Greens is indirect, “result[ings] from obligations that the preventive services coverage regulations impose on a legally separate, secular entity.” Defendants’ response, pp. 18-19. They argue that “[t]his type of attenuated burden is not cognizable under the RFRA.” Id. at p. 19. Plaintiffs counter tha t defendants’ “attenuation argument rewrites their faith. The government may not, they contend “re-draw the tehological lines in religious belief systems.” Plaintiffs’ reply, p. 13. They contend the m andate substantially burdens the ir religious exercise “by forcing them to choose between following the ir convictions and paying enormous fines.” Plaintiffs’ motion, p. 9.
The present circumstances require charting a course through the “treacherous terrain”
15Plaintiffs assert that they “exercise religion by avoiding participation in abortion, an act forbidden by their faith. Plaintiffs’ reply, p. 3.
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at the intersection of the federal governm ent’s duty to avoid im posing burdens on the individual’s practice of religion and the protection of competing interests. See Wilgus, 638 F.3d at 1281. No Supreme Court or Tenth Circuit authority applying or discussing RFRA’s “substantial burden” requirement does so in circumstances like those present here — where regulatory requirements applicable to a general business corporation are alleged to infringe on the religious exercise rights of the corporation’s owners or officers. Similarly, the cases decided under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc-2000cc-5, which applies essentially the same standard,16 do not provide specific guidance. However, certain principles emerge from the cases which guide the court’s determination.
First, it is clear, as plaintiffs argue, that it is not the province of the court to tell the plaintiffs what their religious beliefs are, i.e. whether their beliefs about abortion should be understood to extend to how they run their corporations or the like, or to decide whether such beliefs are fundamental to their belief system or peripheral to it. RFRA makes clear it does not matter whether the particular exercise of religion at issue is or is not c entral to the individual’s religious beliefs. 42 U.S.C. § 2000cc-5(7)(A); see Abdulhaseeb, 600 F.3d at 1314 at n.6. Nonetheless, even assuming, as appears to be the case with plaintiffs, that they object as a matter of religious faith to any act supporting or facilitating abortion, no matter
16RLUIPA cases are instructive as “RLUIPA’s legislative history reveals that ‘substantial burden’ is to be interpreted by reference to the Religious Free dom Act of 1993 ... and First Amendment jurisprudence.” Grace, 451 F.3d at 661 (citing 146 Cong. Rec. 7774-01, 7776).
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how indirect, that does not end the issue. RFRA’s provisions do not apply to anyburden on religious exercise, but rather to a “substantia l” burden on that exercise. As the Seventh Circuit observed in Civil Liberties for Urban Believers v. City of Chicag,o342 F.3d 752 (7th Cir. 2003):
Application of the substantial burden provision to a regulation inhibiting or constraining any religious exercise, including the use of property for religious purposes, would render m eaningless the word “substantial,” because the slightest obstacle to religious exercise incidental to the regulation of land use however minor the burden it were to impose - could then constitute a burden sufficient to trigger RLUIPA’s requirem ent that the regula tion advance a compelling governmental interest by the least restrictive means.17 342 F.3d 752, 761. Recognizing that the word “substantial” must have some meaning, the Civil Liberties court went on to conclude that [I]n the context of RLUIPA’s broad definition of religious exercise, a ... regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary and fundamental responsibility for rendering religious exercise ... impracticable. Id. (emphasis added). Civil Libertiesthus concludes, in general, that a “substantial burden” on religious exercise is one that bears in some relatively direct manner on it. The view of substantial burden adopted by the Seventh Circuit in Civil Libertieiss not the only approach that has emerged. See Adkins v. Kaspar, 393 F.3d 559, 567-71(5th Cir. 2004) (discussing cases); Living Water Church of God v. Charter Twp. of Meridian , 258 Fed.Appx. 729, 2007 WL 4322157 at 6-8 (6th Cir. 2007) (unpublished) (discussing cases).
17Civil Liberties was decided under RLIUPA but, as noted above, RLIUPA’s standards for what constitutes a “substantial burden” are the same as RFRA’s.
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However, the Tenth Circuit has cited Civil Liberties with approval in the context of determining what constitutes a “substantial burden,” Grac,e451 F.3d at 661, suggesting that it shares the view that some level of “directness” must be present. The Tenth Circuit has, of course, also noted that a substantial burden m ay, in som e circumstances, be ba sed on compulsion that is indirect. Abdulhaseeb, 600 F.3d at 1315;see also Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707 (1981). Giving effect to both principles, the result appears to be that, while no bright line rule has been stated by the Supreme Court or the Tenth Circuit (or perhaps could be, in this context), the degree to which the challenged government action operates directly and primarily on the individual’s religious exercise is a significant factor to be evaluated in determining whether a “substantial burden” is present.
Evaluating the “directness” factor here, the court concludes the Greens are unlikely to be able to establish a “substantial burden” on them within the meaning of RFRA. The mandate in question applies only to Hobby Lobbyand Mardel, not to its officers or owners. Further, the particular “burden of which plaintiffs com plain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [Hobby Lobby’s] plan, subsidize som eone else’s participation in an activity that is condem ned by plaintiff’s religion.” O’Brien , 2012 WL 4481208, at *6. Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.”
Other cases decided by the Tenth Circuit under RFRA/RLUIPA are consistent with the view that some reasonably direct and personal connection between the religious exercise
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and the restraint in question m ust be present. In Abdulhaseeb , the restriction in question directly impacted the religious exercise of the plaintiff by denying him the diet that was necessary to his religious beliefs. In Wilgus, the defendant personally possessed the eagle feathers. In Kikumura, the prisoner was denied pastoral visits by a minister he claimed was particularly well suited to provide him with spiritual guidance.
Similarly, the principal Suprem e Court case construing RFRA, Gonzales , also involved a close or personal connection between the religious exercise and the infringing government action. The religious sect in Gonzale s was prohibited from engaging in communion. Its members were faced with the choice of foregoing a religious sacrament or violating the Controlled Substances Act.
Consideration of Supreme Court decisions addressing the constitutional standard in this area also provides some support for the view that the necessary “substantial burden” is unlikely to be established he re. Gra ce notes that the legislative history of RFRA and RLUIPA indicates that the term “substantial burden” should not be given a broader interpretation that the Supreme Court’s articulation of the concept. Grace, 451 F.3d at 661. See O’Brien, 2012 WL 4481208 at *5 (“Courts fre quently look to free exercise cases predating Employment Div. v. Sm ith to determine which burdens cross the threshold of substantiality”); Anselmo, 2012 WL 2090437, at *8 (“The Ninth Circuit has explained that the Supreme Court's free exercise jurisprudence ... is instructive in defining a substantial burden under RLUIPA . . . .”) (quoting Guru Na nak Sikh Soc. of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 988 (9th Cir.2006)). As w ith the Tenth Circuit cases, the Supreme
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Court decisions have also involved situations where the restraint in question operated with some level of directness on the individual. For example, the plaintiff in Sherbert v. Verner, 374 U.S. 398 (1963), was forced “to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” 374 U.S. at 404. The compulsory attendance law at issue in Yoder, 406 U.S. 205 (1972), required the Amish plaintiffs to elect between “abandon[ing] belief and be[ing] assimilated into society at large, or be [ing] forced to migrate to som e other and m ore tolerant region.” 406 U.S. at 218. In Thom as, the employee’s personal participation in activity to which he objected was involved.
Finally, the court notes the Supreme Court’s approach in Lee. Although Lee was a free exercise case and focused principally on the nature and application of the com pelling interest test, its discussion of the impact of commercial activity provides some guidance on the issue of what constitutes a “substantial burden.” The Court noted that “every pe rson cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs.” Lee, 455 U.S. at 261. The plain import is that there must be more than some burden on religious exercise. The burden m ust be substantial. The Court then went on to state that
[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be supe rimposed on the statutory schem es which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Congress drew a line in § 1402(g), exempting the self-employed Amish but not all persons working for an Amish employer.
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455 U.S. at 261. The Court’s discussion reflected a concern with the im pact of the employer’s faith-based decisions on his employees. While that appears not to have been a matter critical in Lee , as Lee’s em ployees were a lso Amish, it would be potentially significant here. Hobby Lobby and Mardel em ploy over 13,500 people and “welcom e[] employees of all faiths or no faith.” Complaint, ¶ 51. Many of those employees are likely to have different religious views. More over, the employees’ rights being affected are of constitutional dimension — related to matters of procreation, marriage contraception, and abortion.18 While such considerations (and the discussion in Leereferenced above) go most directly to a determination of whether a com pelling governmental interest is shown in a particular circumstance, rather than to what is here the determ inative issue — wha t constitutes a “substantial burden” — they nonetheless suggest that term should be given meaningful application.
In sum, while the meaning and reach of the term “substantial burden” in this context is considerably less than crystal clear, it appears to impose a requirement that the burden on religious exercise be more direct and personalthan has been shown here as to the Greens and their management of nationwide general business corporations.
18The matter of a constitutional right to aborti on has been highly controversial since the right was discovered among the penumbras of the Due Process Clause some forty years ago. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705 (1973). Nonetheless, the right is now clearly established and necessarily shapes the nature of the rights and interests of plaintiffs’ employees. See Gonzales v. Carhart, 550 U.S. 124(2007) ; Planned Parenthood of Southeastern Pa. v. Cas ey, 505 U.S. 833 (1992).
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Conclusion Plaintiffs have not shown a “clear and unequivocal” right to injunctive relief in light of the standards applicable to their request. Heideman, 348 F.3d at 1188 (internal quotations omitted). The court is not unsympathetic to plaintiffs’ circumstances and recognizes that the ACA’s substantial expansion of em ployer obligations results in c oncerns and issues not previously confronted by companies or their owners. However, for the reasons previously stated, the court concludes plaintiffs have not made the necessary showing of a likelihood of success on the m erits to warrant a prelim inary injunction in the circum stances existing here. Plaintiffs have not demonstrated a probability of success on their First Amendment claims. Hobby Lobby and Mardel, secular, for- profit corporations, do not have free exercise rights. The Greens do have such rights, but are unlikely to prevail as to their constitutional claims because the preventive care coverage regulations they challenge are neutral laws of general applicability which are rationally related to a legitimate governmental objective. Plaintiffs also have failed to demonstrate a probability of success on their Religious Freedom Restoration Act claims. Hobby Lobby and Mardel are not “persons” for purposes of the RFRA and the Greens have not established that compliance with the preventive care coverage regulations would “substantially burden” their religious exercise, as the term “substantially burdened” is used in the statute. Therefore, plaintiffs have not emt their prima facie burden under RFRA and have not dem onstrated a probability of success as to their
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Case 5:12-cv-01000-HE Document 45 Filed 11/19/12 Page 28 of 28 RFRA claims.19 Accordingly, the motion for preliminary injunction [Doc. #6]is DENIED.
IT IS SO ORDERED. Dated this 19th day of November, 2012.
19Because plaintiffs have not demonstrated a substantial likelihood of success on the merits, it is unnecessary to determine whether the three other factors tip in their favor.
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 Case 5:12-cv-01000-HE Document 46 Filed 11/19/12 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

HOBBY LOBBY STORES, INC., MARDEL, INC., DAVID GREEN, BARBARA GREEN, STEVE GREEN, MART GREEN, AND DARSEE LETT,
Plaintiffs,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

Case No. 5:12-cv-01000-HE

NOTICE OF APPEAL Notice is hereby given this 19th day of November, 2012, t hat Plaintiffs Hobby Lobby Stores, Inc., Mardel, Inc., David Green, Barbara Green, Steve Green, Mart Green, and Darsee Lett (collectively, “Plaintiffs”) hereby appeal to the United States Court of Appeals for the Tenth Circuit from the judgment of this Court entered on November 19, 2012 (Dkt. 45), in favor of the above-captioned Defendants and against the Plaintiffs. The Court’s order denied the Plaintiffs’ motion for a preliminary injunction.

Case 5:12-cv-01000-HE Document 46 Filed 11/19/12 Page 2 of 3
Respectfully submitted,
s/ S. Kyle Duncan S. Kyle Duncan, LA Bar No. 25038
(admitted pro hac vice) Eric S. Baxter, D.C. Bar No. 479221
(admitted pro hac vice) Lori Halstead Windham, D.C. Bar No. 501838
(admitted pro hac vice) THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street, N.W., Suite 220 Washington, D.C. 20007 Telephone: (202) 955-0095 Facsimile: (202) 955-0090 kduncan@becketfund.org -AndCharles E. Geister III, OBA No. 3311 Derek B. Ensminger, OBA No. 22559 HARTZOG, CONGER, CASON & NEVILLE 1600 Bank of Oklahoma Plaza 201 Robert S. Kerr Avenue Oklahoma City, OK 73102 Telephone: (405) 235-7000 Facsimile: (405) 996-3403 cgeister@hartzoglaw.com densminger@hartzoglaw.com ATTORNEYS FOR PLAINTIFFS
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Case 5:12-cv-01000-HE Document 46 Filed 11/19/12 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was electronically filed with the Court’s ECF system on November 19, 2012, and was thereby electronically served on counsel for Defendants.
s/ S. Kyle Duncan S. Kyle Duncan, LA Bar No. 25038
(admitted pro hac vice) THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street, N.W., Suite 220 Washington, D.C. 20007 Telephone: (202) 955-0095 Facsimile: (202) 955-0090 kduncan@becketfund.org
3

 
 Case 5:12-cv-01000-HE Document 54 Filed 12/10/12 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

_______________________________________

)

HOBBY LOBBY STORES, INC., et al.,

)

)

Civil Action No.

Plaintiffs,

)

CIV-12-1000-HE

)

v.

)

)

KATHLEEN SEBELIUS, in her official

)

capacity as the Secretary of the United States )

Department of Health and Human

)

Services, et al.,

)

)

Defendants.

)

______________________________________ )

JOINT MOTION TO STAY DISTRICT COURT PROCEEDINGS PENDING APPEAL
The parties, by and through their undersigned counsel, hereby jointly move this Court to enter an order staying further proceedings in this Court pending resolution of plaintiffs’ appeal to the United States Court of Appeals for the Tenth Circuit of this Court’s denial of plaintiffs’ motion for a preliminary injunction. In support of this motion, the parties state as follows:
1. On November 19, 2012, this Court entered an order denying plaintiffs’ motion for a preliminary injunction. See Order, ECF No. 45. The Court determined, among other things, that plaintiffs had not demonstrated a likelihood of success on their Religious Freedom Restoration Act (“RFRA”) or Free Exercise Clause claims.
2. That same day, plaintiffs filed a Notice of Appeal in which plaintiffs appealed this Court’s order denying plaintiffs’ motion for a preliminary injunction to the United States Court of Appeals for the Tenth Circuit. See Notice of Appeal, ECF No. 46.

Case 5:12-cv-01000-HE Document 54 Filed 12/10/12 Page 2 of 5
3. Defendants’ response to plaintiffs’ complaint is currently due on December 13, 2012. See Order, ECF No. 53. Absent a stay of district court proceedings, defendants intend to move to dismiss the complaint in its entirety under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.
4. “Although the filing of an interlocutory appeal does not automatically stay proceedings in the district court, the district court has broad discretion to decide whether a stay is appropriate to promote economy of time and effort for itself, for counsel, and for litigants.” Association of Irritated Residents v. Fred Schakel Dairy , 634 F. Supp. 2d 1081, 1094 (E.D. Cal. 2008).
5. Defendants’ intended motion to dismiss will raise legal issues regarding plaintiffs’ RFRA and Free Exercise Clause claims that are likely to be addressed by the Tenth Circuit in adjudicating plaintiffs’ appeal of this Court’s denial of a preliminary injunction. The parties believe it would be inefficient to concurrently litigate these issues in both courts.
6. The District Court for the District of Colorado recently stayed district court proceedings under similar circumstances in Newland v. Sebelius. See Order, Newland v. Sebelius, No. 1:12-cv-01123, Oct. 26, 2012, ECF No. 57. In that case, the district court granted plaintiffs’ motion for a preliminary injunction, and the government appealed. Id. at 1. The court stayed all district court proceedings “until the Tenth Circuit issues its ruling or until further order of this Court.” Id. at 2. The parties respectfully request that this Court do the same.
7. The parties wish to reserve the right to request that this Court reopen district court proceedings prior to resolution of the appeal under appropriate circumstances. The Court, of course, retains discretion to accept or reject any such request.
2

Case 5:12-cv-01000-HE Document 54 Filed 12/10/12 Page 3 of 5

8. Further, if the Court denies this joint motion to stay proceedings pending appeal, the parties jointly request that the Court extend the deadline for defendants to respond to plaintiffs’ complaint to January 4, 2013.
Accordingly, the parties respectfully request that this Court enter an order staying all district court proceedings until the Tenth Circuit issues a ruling resolving plaintiffs’ appeal of this Court’s denial of preliminary injunctive relief or until further order of this Court.
Respectfully submitted this 10th day of December, 2012,

Attorneys for Plaintiffs

Charles E. Geister III
OK Bar No. 3311
Derek B. Ensminger OK Bar No. 22559 HARTZOG, CONGER, CASON & NEVILLE
1600 Bank of Oklahoma Plaza 201 Robert S. Kerr Avenue Oklahoma City, OK 73102 (405) 235-7000 (405) 996-3403 (fax) cgeister@hartzoglaw.com densminger@hartzoglaw.com

s/ Eric S. Baxter__________________ (by Michelle Bennett, with permission)
S. Kyle Duncan
LA Bar No. 25038 (admitted pro hac vice) Eric S. Baxter
DC Bar No. 479221 (admitted pro hac vice) Lori Halstead Windham
DC Bar No. 501838 (admitted pro hac vice) THE BECKET FUND FOR RELIGIOUS
LIBERTY 3000 K Street, N.W., Suite 220 Washington, D.C. 20007
(202) 955-0095 (202) 955-0090 (fax) kduncan@becketfund.org

Attorneys for Defendants
STUART F. DELERY Principal Deputy Assistant Attorney General
IAN HEATH GERSHENGORN Deputy Assistant Attorney General
SANFORD COATS United States Attorney
3

Case 5:12-cv-01000-HE Document 54 Filed 12/10/12 Page 4 of 5
JENNIFER RICKETTS Director SHEILA M. LIEBER Deputy Director s/ Michelle R. Bennett MICHELLE R. BENNETT (CO Bar No. 37050) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7310 Washington, D.C. 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov
4

Case 5:12-cv-01000-HE Document 54 Filed 12/10/12 Page 5 of 5 CERTIFICATE OF SERVICE
I hereby certify that on December 10, 2012, a copy of the foregoing was filed electronically with the Clerk of the Court to be served upon the following: Charles E. Geister , III cgeister@hartzoglaw.com Derek B. Ensminger densminger@hartzoglaw.com Eric S. Baxter ebaxter@becketfund.org Lori H. Windham lwindham@becketfund.org Stuart K. Duncan kduncan@becketfund.org
s/ Michelle R. Bennett MICHELLE R. BENNETT
5

 
 Case 5:12-cv-01000-HE Document 55 Filed 12/12/12 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

HOBBY LOBBY STORES, INC., ET AL., )

)

Plaintiffs,

)

vs.

)

)

KATHLEEN SEBELIUS, Secretary of the )

United States Department of Health and )

Human Services, ET AL.,

)

)

Defendants.

)

NO. CIV-12-1000-HE

ORDER

The parties’ joint motion to stay [Doc. #54] is GRANTED. Further proceedings in

this case are STAYED pending the resolution of plaintiff’s appeal to the Tenth Circuit Court

of Appeals or further order of the court.

IT IS SO ORDERED.

Dated this 12th day of December, 2012.

 
 Case 5:12-cv-01000-HE Document 56 Filed 12/20/12 Page 1 of 7 Appellate Case: 12-6294 Document: 01018971585 Date Filed: 12/20/2012 Page: 1

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

Tenth Circuit

FOR THE TENTH CIRCUIT

December 20, 2012

HOBBY LOBBY STORES, INC.; MARDEL, INC.; DAVID GREEN; BARBARA GREEN; MART GREEN; STEVE GREEN; DARSEE LETT,

Elisabeth A. Shumaker Clerk of Court

Plaintiffs-Appellants,

v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; HILDA SOLIS, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; TIMOTHY GEITHNER, Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF THE TREASURY,

No. 12-6294 (D.C. No. 5:12-CV-01000-HE)
(W.D. Okla.)

Defendants-Appellees.

ORDER

Before LUCERO and EBEL, Circuit Judges.

Plaintiffs-Appellants Hobby Lobby Stores, Inc. and Mardel, Inc. (corporate plaintiffs), and David Green, Barbara Green, Mart Green, Steve Green, and Darsee Lett (individual plaintiffs) who indirectly own and control the closely-held corporate

Case 5:12-cv-01000-HE Document 56 Filed 12/20/12 Page 2 of 7 Appellate Case: 12-6294 Document: 01018971585 Date Filed: 12/20/2012 Page: 2
plaintiffs, have moved for an injunction pending resolution of this appeal. For reasons explained below, we conclude they have failed to demonstrate an entitlement to such relief and therefore deny the motion.
Plaintiffs brought this action for declaratory and injunctive relief to challenge the regulatory implementation of one aspect of the Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat. 119, as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029. They object to implementation of the preventive health services provision, 42 U.S.C. § 300gg-13(a), which mandates coverage, without cost-sharing requirements, of “preventive care and screenings” for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [HRSA].” Their primary claim is that HRSA guidelines allowing for abortion-inducing contraceptive drugs and devices violate their free-exercise rights under the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to bb-4. Along with their complaint, plaintiffs filed a motion for a preliminary injunction to preclude enforcement of the mandate, which would otherwise take effect with respect to the corporate plaintiffs’ employee insurance plans on January 1, 2013. After briefing and a hearing, the district court denied the motion. This appeal, and the motion for associated injunctive relief, followed.
In ruling on a motion for injunction pending appeal, “this court makes the same inquiry as it would when reviewing a district court’s grant or denial of a
- 2 -

Case 5:12-cv-01000-HE Document 56 Filed 12/20/12 Page 3 of 7 Appellate Case: 12-6294 Document: 01018971585 Date Filed: 12/20/2012 Page: 3
preliminary injunction,” Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001) (per curiam), which means this motions panel must assess the same factors that will control the merits panel’s review of the underlying appeal. Of course, our assessment is based on a preliminary record without the benefit of full merits briefing and oral argument, and hence our necessarily tentative conclusions do not purport to constrain the ultimate determination of the case, Homans v. City of Albuquerque, 366 F.3d 900, 904-05 (10th Cir. 2004). With that caveat, we turn to the considerations that govern the grant or denial of preliminary injunctive relief.
To obtain a preliminary injunction, the movant must show: (1) a substantial likelihood of success on the merits;1 (2) irreparable injury will result if the injunction does not issue; (3) the threatened injury outweighs any damage the injunction may cause the opposing party; and (4) the injunction would not be adverse to the public interest. Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009). The burden on the movant with respect to this showing may be heightened or relaxed, depending on the nature of the injunctive relief sought. Three types of preliminary injunctions are specifically disfavored: injunctions that alter the

1

In this respect, an injunction pending appeal and a preliminary injunction

differ in focus, as the former involves success on appeal, Homans, 264 F.3d at 1243,

while the latter involves success at trial, Att’y Gen. of Okla. v. Tyson Foods, Inc.,

565 F.3d 769, 777 (10th Cir. 2009).

- 3 -

Case 5:12-cv-01000-HE Document 56 Filed 12/20/12 Page 4 of 7 Appellate Case: 12-6294 Document: 01018971585 Date Filed: 12/20/2012 Page: 4
status quo;2 mandatory injunctions;3 and injunctions that afford the movant all of the relief it could recover at the conclusion of a full trial on the merits. Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012). For these, the movant must show that the factors cited above “weigh heavily and compellingly in its favor.” Id. (internal quotation marks omitted). Plaintiffs do not seek injunctive relief of this sort: the status quo is reflected in the coverage provided in their current health plans, which the injunction would preserve; the injunction would require forbearance, not affirmative action, by the government; and a full trial on the merits could provide plaintiffs with permanent declaratory and injunctive relief beyond the temporary injunctive relief now at issue.
On the other hand, a relaxed standard may be applied to the success factor if the movant establishes that the others “tip decidedly in its favor.” Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1298 n.6 (10th Cir. 2006) (internal quotation marks omitted). In that case, instead of showing a substantial likelihood of success, the movant need only show “questions going to the merits so serious, substantial, difficult, and doubtful, as to make them a fair ground for litigation.” Id. (internal

2

“Status quo” here refers to “the last peaceable uncontested status existing

between the parties before the dispute developed.” Beltronics USA, Inc. v. Midwest

Inventory Distrib., LLC, 562 F.3d 1067, 1071 (10th Cir. 2009) (internal quotation

marks omitted).

3

Mandatory injunctions “require the nonmoving party to take affirmative

action . . . before a trial on the merits occurs.” Tyson Foods, 565 F.3d at 776

(internal quotation marks omitted).

- 4 -

Case 5:12-cv-01000-HE Document 56 Filed 12/20/12 Page 5 of 7 Appellate Case: 12-6294 Document: 01018971585 Date Filed: 12/20/2012 Page: 5
quotation marks omitted). Plaintiffs insist they are entitled to this relaxed standard. The district court disagreed, but not on the basis of the showing on the other factors. Rather, the district court invoked an independent categorical limitation on the availability of the relaxed standard: “‘where a preliminary injunction seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the less rigorous fair-ground-for-litigation standard should not be applied.’” Id. (quoting Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (further quotation omitted)). Plaintiffs advance two objections to this conclusion.
First, they contend the sheer number of exemptions currently allowed to forestall enforcement of the challenged mandate so diminishes the public interest involved that the Heideman/Nova Health principle is inapposite. We agree with the district court that the principle is triggered once a legislative or regulatory judgment is made that a scheme is needed to protect the public interest, and it is not up to the courts to second-guess that judgment or reassess the weight of the public interest.
Second, plaintiffs contend the Heideman/Nova Health principle should not apply when the proposed injunctive interference with the challenged scheme is counterbalanced by the enforcement of a contrary scheme—in this instance RFRA. Plaintiffs do not cite any authority for their major premise that the Heideman/Nova Health principle is inapplicable in cases involving competing schemes. Nor do they support their minor premise that RFRA constitutes a legislative or regulatory scheme for governmental action within the meaning of Heideman/Nova Health. RFRA is a
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Case 5:12-cv-01000-HE Document 56 Filed 12/20/12 Page 6 of 7 Appellate Case: 12-6294 Document: 01018971585 Date Filed: 12/20/2012 Page: 6
singular constraint on all governmental action, not a comprehensive directive for governmental action in a particular sphere. Given this double weakness in plaintiffs’ effort to distinguish our otherwise controlling precedent, we adhere to that precedent here and thus use a substantial-likelihood-of-success standard in assessing their motion for injunctive relief on appeal.
We agree with the district court that plaintiffs failed to satisfy this standard on the first element of their RFRA claim, that the challenged mandate “substantially burden[ed] [their] exercise of religion.”4 42 U.S.C. § 2000bb-1(a); see also Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001) (setting out elements of prima facie case under RFRA). Thus, like the district court, we need not consider whether defendants have shown that the mandate is “‘in furtherance of a compelling governmental interest’ and ‘is the least restrictive means of furthering that compelling governmental interest.’” Kikumura, 242 F.3d at 962 (quoting 42 U.S.C. § 2000bb-1(b) for burden placed on government if prima facie case under RFRA is made).

4

The district court held that the for-profit corporate plaintiffs are not “persons”

who can invoke RFRA to protect an “exercise of religion” within the meaning of

42 U.S.C. § 2000bb-1(a), even if they are closely held by individuals who invoke

RFRA. That is a point vigorously contested by plaintiffs. We do not distinguish at

this preliminary stage of the proceedings between the corporate and individual

plaintiffs, as their common failure to demonstrate a substantial likelihood of success

on the RFRA prima face case suffices to dispose of the motion before us.

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Case 5:12-cv-01000-HE Document 56 Filed 12/20/12 Page 7 of 7 Appellate Case: 12-6294 Document: 01018971585 Date Filed: 12/20/2012 Page: 7
The central point of the district court’s substantial-burden analysis was succinctly stated:
[T]he particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff[s’] religion. Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012) (citation and internal quotation marks omitted). We agree. As the district court noted, other cases enforcing RFRA have done so to protect a plaintiff’s own participation in (or abstention from) a specific practice required (or condemned) by his religion. We do not think there is a substantial likelihood that this court will extend the reach of RFRA to encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship. The motion for an injunction pending appeal is denied.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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 Appellate

Case Case:

152:1-622-c9v4-010D0o0c-HumEenDt:o0c1u0m1e9n0t8605755FiledD0a6te/2F7i/l1eU3dn:i0tPe6ad/2gS7etT/a21et0noeF1stf3Ih1CL6CoE5iuPrDrcatugoietf:

A1 ppeals

June 27, 2013

PUBLISH

Elisabeth A. Shumaker

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HOBBY LOBBY STORES, INC.; MARDEL, INC.; DAVID GREEN; BARBARA GREEN; MART GREEN; STEVE GREEN; DARSEE LETT,
Plaintiffs-Appellants,
v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; HILDA SOLIS, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; TIMOTHY GEITHNER, Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants-Appellees. ______________________
EMERITUS PROFESSOR OF LAW CHARLES E. RICE; PROFESSOR OF LAW BRADLEY P. JACOB; TEXAS CENTER FOR DEFENSE OF LIFE; NATIONAL LEGAL FOUNDATION; LIBERTY, LIFE AND LAW FOUNDATION; AMERICAN CENTER FOR LAW AND JUSTICE;

No. 12-6294

Case 5:12-cv-01000-HE Document 65 Filed 06/27/13 Page 2 of 165 Appellate Case: 12-6294 Document: 01019080755 Date Filed: 06/27/2013 Page: 2
BREAST CANCER PREVENTION INSTITUTE; BIOETHICS DEFENSE FUND; LIFE LEGAL DEFENSE FOUNDATION; THE RIGHT REVEREND W. THOMAS FRERKING, OSB; MISSOURI ROUNDTABLE FOR LIFE; ARCHDIOCESE OF OKLAHOMA CITY; EAGLE FORUM; SANFORD C. COATS; SENATOR DANIEL COATS; SENATOR THAD COCHRAN; SENATOR MIKE CRAPO; SENATOR CHARLES GRASSLEY; SENATOR ORRIN G. HATCH, Senator; SENATOR JAMES M. INHOFE; SENATOR MITCH MCCONNELL; SENATOR PAT ROBERTS; SENATOR RICHARD SHELBY; CONGRESSMAN LAMAR SMITH; ASSOCIATION OF GOSPEL RESCUE MISSIONS; PRISON FELLOWSHIP MINISTRIES; ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; NATIONAL ASSOCIATION OF EVANGELICALS; ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; INSTITUTIONAL RELIGIOUS FREEDOM ALLIANCE; CHRISTIAN LEGAL SOCIETY; ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS; AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS AND GYNECOLOGISTS; CHRISTIAN MEDICAL ASSOCIATION; CATHOLIC MEDICAL ASSOCIATION; NATIONAL CATHOLIC BIOETHICS CENTER;
-2-

Case 5:12-cv-01000-HE Document 65 Filed 06/27/13 Page 3 of 165 Appellate Case: 12-6294 Document: 01019080755 Date Filed: 06/27/2013 Page: 3
PHYSICIANS FOR LIFE; NATIONAL ASSOCIATION OF PRO LIFE NURSES; UNITED STATES JUSTICE FOUNDATION; CONGRESSMAN FRANK WOLF; STATE OF OKLAHOMA; WYWATCH FAMILY ACTION, INC.; THE C12 GROUP; PHYSICIANS FOR REPRODUCTIVE HEALTH; THE AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS; THE AMERICAN SOCIETY FOR EMERGENCY CONTRACEPTION; ASSOCIATION OF REPRODUCTIVE HEALTH PROFESSIONALS; AMERICAN SOCIETY FOR REPRODUCTIVE MEDICINE; SOCIETY FOR ADOLESCENT HEALTH AND MEDICINE; AMERICAN MEDICAL WOMEN'S ASSOCIATION; NATIONAL ASSOCIATION OF NURSE PRACTITIONERS IN WOMEN'S HEALTH; JAMES TRUSSELL; SUSAN F. WOOD; DON DOWNING; KATHLEEN BESINQUE; AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; UNION FOR REFORM JUDAISM; CENTRAL CONFERENCE OF AMERICAN RABBIS; WOMEN OF REFORM JUDAISM; HINDU AMERICAN FOUNDATION; NATIONAL WOMEN'S LAW CENTER; AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN
-3-

Case 5:12-cv-01000-HE Document 65 Filed 06/27/13 Page 4 of 165 Appellate Case: 12-6294 Document: 01019080755 Date Filed: 06/27/2013 Page: 4
FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME); BLACK WOMEN'S HEALTH IMPERATIVE; BOULDER NOW; COLORADO ORGANIZATION FOR LATINA OPPORTUNITY AND REPRODUCTIVE RIGHTS (COLOR); GENDER IMPACTS POLICY, a project of the Center of Southwest Culture; IBIS REPRODUCTIVE HEALTH; LAW STUDENTS FOR REPRODUCTIVE JUSTICE; MERGERWATCH; NARAL PRO-CHOICE AMERICA; NARAL PRO-CHOICE COLORADO; NARAL PRO-CHOICE WYOMING; NATIONAL ORGANIZATION FOR WOMEN FOUNDATION; NATIONAL ORGANIZATION FOR WOMEN-SANTA FE CHAPTER (SANTA FE NOW); NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES; NEW MEXICO-NATIONAL ORGANIZATION FOR WOMEN (NMNOW); PLANNED PARENTHOOD OF ARKANSAS & EASTERN OKLAHOMA, INC., d/b/a Planned Parenthood of Heartland-Oklahoma; PLANNED PARENTHOOD ASSOCIATION OF UTAH; PLANNED PARENTHOOD OF KANSAS & MID-MISSOURI; PLANNED PARENTHOOD OF THE ROCKY MOUNTAINS, INC.; POPULATION CONNECTION;
-4-

Case 5:12-cv-01000-HE Document 65 Filed 06/27/13 Page 5 of 165 Appellate Case: 12-6294 Document: 01019080755 Date Filed: 06/27/2013 Page: 5
RAISING WOMEN'S VOICES FOR THE HEALTH CARE WE NEED; SERVICE EMPLOYEES INTERNATIONAL UNION; SOUTHWEST WOMEN'S LAW CENTER; UTAH HEALTH POLICY PROJECT; CENTER FOR REPRODUCTIVE RIGHTS; AMERICAN PUBLIC HEALTH ASSOCIATION; GUTTMACHER INSTITUTE; NATIONAL FAMILY PLANNING & REPRODUCTIVE HEALTH ASSOCIATION; NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL WOMEN'S HEALTH NETWORK; R. ALTA CHARO, Professor; REPRODUCTIVE HEALTH TECHNOLOGIES PROJECT; AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA; ANTI-DEFAMATION LEAGUE; CATHOLICS FOR CHOICE; HADASSAH, THE WOMEN'S ZIONIST ORGANIZATION OF AMERICA, INC.; INTERFAITH ALLIANCE FOUNDATION; NATIONAL COALITION OF AMERICAN NUNS; NATIONAL COUNCIL OF JEWISH WOMEN; RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE; UNITARIAN UNIVERSALIST ASSOCIATION; UNITARIAN UNIVERSALIST WOMEN'S FEDERATION; NATIONAL HEALTH LAW PROGRAM; MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, INC.; ASIAN PACIFIC
-5-

Case 5:12-cv-01000-HE Document 65 Filed 06/27/13 Page 6 of 165 Appellate Case: 12-6294 Document: 01019080755 Date Filed: 06/27/2013 Page: 6
AMERICAN LEGAL CENTER; FORWARD TOGETHER; NATIONAL HISPANIC MEDICAL ASSOCIATION; IPAS; SEXUALITY INFORMATION AND EDUCATIONAL COUNCIL OF THE U.S.; CAMPAIGN TO END AIDS; HIV LAW PROJECT; NATIONAL WOMEN AND AIDS COLLECTIVE; HOUSING WORKS,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. NO. 5:12-CV-01000-HE)
S. Kyle Duncan (Luke W. Goodrich, Mark L. Rienzi, Eric S. Baxter, Lori H. Windham, and Adèle Auxier Keim with him on the brief) The Becket Fund for Religious Liberty, Washington, D.C., for Appellants.
Alisa B. Klein, Appellate Staff Attorney (Stuart F. Delery, Principal Deputy Assistant Attorney General, Sanford C. Coats, United States Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and Mark B. Stern, Appellate Staff Attorney, with her on the brief) Civil Division, United States Department of Justice, Washington, D.C., for Appellees.
Before BRISCOE, Chief Judge, KELLY, LUCERO, HARTZ, TYMKOVICH, GORSUCH, MATHESON, and BACHARACH, Circuit Judges.*
* The Honorable Jerome A. Holmes is recused in this matter. -6-

Case 5:12-cv-01000-HE Document 65 Filed 06/27/13 Page 7 of 165 Appellate Case: 12-6294 Document: 01019080755 Date Filed: 06/27/2013 Page: 7
TYMKOVICH, Circuit Judge.
This case requires us to determine whether the Religious Freedom Restoration Act and the Free Exercise Clause protect the plaintiffs—two companies and their owners who run their businesses to reflect their religious values. The companies are Hobby Lobby, a craft store chain, and Mardel, a Christian bookstore chain. Their owners, the Greens, run both companies as closely held family businesses and operate them according to a set of Christian principles. They contend regulations implementing the 2010 Patient Protection and Affordable Care Act force them to violate their sincerely held religious beliefs. In particular, the plaintiffs brought an action challenging a regulation that requires them, beginning July 1, 2013, to provide certain contraceptive services as a part of their employer-sponsored health care plan. Among these services are drugs and devices that the plaintiffs believe to be abortifacients, the use of which is contrary to their faith.
We hold that Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.
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More specifically, the court rules as follows: As to jurisdictional matters, the court unanimously holds that Hobby Lobby and Mardel have Article III standing to sue and that the Anti-Injunction Act does not apply to this case. Three judges (Kelly, Tymkovich, and Gorsuch, JJ.) would also find that the Anti-Injunction Act is not jurisdictional and the government has forfeited reliance on this statute. These three judges would also hold that the Greens have standing to bring RFRA and Free Exercise claims and that a preliminary injunction should be granted on their RFRA claim. A fourth judge (Matheson, J.) would hold that the Greens have standing and would remand for further consideration of their request for a preliminary injunction on their RFRA claim. Concerning the merits, a majority of five judges (Kelly, Hartz, Tymkovich, Gorsuch, and Bacharach, JJ.) holds that the district court erred in concluding Hobby Lobby and Mardel had not demonstrated a likelihood of success on their RFRA claim. Three judges (Briscoe, C.J., and Lucero and Matheson, JJ.) disagree and would affirm the district court on this question. A majority of five judges (Kelly, Hartz, Tymkovich, Gorsuch, and Bacharach, JJ.) further holds that Hobby Lobby and Mardel satisfy the irreparable harm prong of the preliminary injunction standard. A four-judge plurality (Kelly, Hartz, Tymkovich, Gorsuch, JJ.) would resolve the other two preliminary injunction factors (balance of equities and public interest) in Hobby Lobby and
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Case 5:12-cv-01000-HE Document 65 Filed 06/27/13 Page 9 of 165 Appellate Case: 12-6294 Document: 01019080755 Date Filed: 06/27/2013 Page: 9
Mardel’s favor and remand with instructions to enter a preliminary injunction, but
the court lacks a majority to do so. Instead, the court remands to the district court for further evaluation of the two remaining preliminary injunction factors.1
One judge (Matheson, J.) reaches the merits of the plaintiffs’ constitutional
claim under the Free Exercise Clause, concluding that it does not entitle the plaintiffs to preliminary injunctive relief.2
Accordingly, for the reasons set forth below and exercising jurisdiction
under 28 U.S.C. § 1292(a)(1), we reverse the district court’s denial of the
plaintiffs’ motion for a preliminary injunction and remand with instructions that
the district court address the remaining two preliminary injunction factors and
then assess whether to grant or deny the plaintiffs’ motion.
1 The en banc court joins as follows: (1) All judges join Part III; (2) Judges Kelly, Hartz, Tymkovich, Gorsuch, and Bacharach join Parts I, II, III, IV, and V; (3) Judges Kelly, Hartz, Tymkovich, and Gorsuch join Part VI in full, and Judge Bacharach joins as to Section VI(B)(1) only; (4) Judge Hartz separately concurs; (5) Judge Gorsuch separately concurs, joined by Judges Kelly and Tymkovich; (6) Judge Bacharach concurs in part; (7) Chief Judge Briscoe concurs and dissents in part, joined by Judge Lucero; and (8) Judge Matheson concurs and dissents in part. 2 Because the district court will be reviewing the RFRA claim, the majority declines at this stage to reach the constitutional question of whether Hobby Lobby and Mardel are likely to succeed on their Free Exercise claim. See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”).
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I. Background & Procedural History
A. The Plaintiffs The plaintiffs in this case are David and Barbara Green, their three children (Steve Green, Mart Green, and Darsee Lett), and the businesses they collectively own and operate: Hobby Lobby Stores, Inc. and Mardel, Inc. David Green is the founder of Hobby Lobby, an arts and crafts chain with over 500 stores and about 13,000 full-time employees. Hobby Lobby is a closely held family business organized as an S-corp. Steve Green is president of Hobby Lobby, and his siblings occupy various positions on the Hobby Lobby board. Mart Green is the founder and CEO of Mardel, an affiliated chain of thirty-five Christian bookstores with just under 400 employees, also run on a for-profit basis. As owners and operators of both Hobby Lobby and Mardel, the Greens have organized their businesses with express religious principles in mind. For example, Hobby Lobby’s statement of purpose recites the Greens’ commitment to “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.” JA 22–23a. Similarly, Mardel, which sells exclusively Christian books and materials, describes itself as “a faith-based company dedicated to renewing minds and transforming lives through the products we sell and the ministries we support.” JA 25a. Furthermore, the Greens allow their faith to guide business decisions for
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both companies. For example, Hobby Lobby and Mardel stores are not open on Sundays; Hobby Lobby buys hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior,” JA 24a; and Hobby Lobby refuses to engage in business activities that facilitate or promote alcohol use.
The Greens operate Hobby Lobby and Mardel through a management trust (of which each Green is a trustee), and that trust is likewise governed by religious principles. The trust exists “to honor God with all that has been entrusted” to the Greens and to “use the Green family assets to create, support, and leverage the efforts of Christian ministries.” JA 21a. The trustees must sign “a Trust Commitment,” which among other things requires them to affirm the Green family statement of faith and to “regularly seek to maintain a close intimate walk with the Lord Jesus Christ by regularly investing time in His Word and prayer.” Id.
As is particularly relevant to this case, one aspect of the Greens’ religious commitment is a belief that human life begins when sperm fertilizes an egg. In addition, the Greens believe it is immoral for them to facilitate any act that causes the death of a human embryo.
B. The Contraceptive-Coverage Requirement Under the Patient Protection and Affordable Care Act (ACA), employment-based group health plans covered by the Employee Retirement Income Security Act (ERISA) must provide certain types of preventive health
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services. See 42 U.S.C. § 300gg-13; 29 U.S.C. § 1185d. One provision mandates coverage, without cost-sharing by plan participants or beneficiaries, of “preventive care and screenings” for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [HRSA].” 42 U.S.C. § 300gg-13(a)(4). HRSA is an agency within the Department of Health and Human Services (HHS).
When the ACA was enacted, there were no HRSA guidelines related to preventive care and screening for women. As a result, HHS asked the Institute of Medicine (an arm of the National Academy of Sciences) to develop recommendations to help implement these requirements. In response, the Institute issued a report recommending, among other things, that the guidelines require coverage for “‘[a]ll Food and Drug Administration [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,’ as prescribed by a provider.” 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012).
HRSA and HHS adopted this recommendation, meaning that employment-based group health plans covered by ERISA now must include FDAapproved contraceptive methods. The FDA has approved twenty such methods, ranging from oral contraceptives to surgical sterilization. Four of the twenty approved methods—two types of intrauterine devices (IUDs) and the emergency contraceptives commonly known as Plan B and Ella—can function by preventing
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the implantation of a fertilized egg. The remaining methods function by
preventing fertilization.3
C. Exemptions from the Contraceptive-Coverage Requirement
A number of entities are partially or fully exempted from the
contraceptive-coverage requirement.
First, HHS “may establish exemptions” for “group health plans established
or maintained by religious employers and health insurance coverage provided in
connection with group health plans established or maintained by religious
employers with respect to any requirement to cover contraceptive services . . . .”
45 C.F.R. § 147.130(a)(1)(iv)(A).
3 There is an ongoing medical debate as to whether some of the contraceptive methods relevant to this case act by preventing implantation or fertilization. Compare, e.g., Physicians for Reproductive Health et al. Amicus Br. at 12–13, with Ass’n of Am. Physicians & Surgeons et al. Amicus Br. at 12 & n.21. This is relevant because Hobby Lobby and Mardel object to forms of contraception that prevent uterine implantation, but they do not object to those that prevent conception. For purposes of this appeal, however, there is no material dispute. Both the government and the medical amici supporting the government concede that at least some of the contraceptive methods to which the plaintiffs object have the potential to prevent uterine implantation. See, e.g., Aple. Br. at 9 n.6 (noting that one of the three ways emergency contraceptive pills function is by “inhibiting implantation” (quoting 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997))); Physicians for Reproductive Health et al. Amicus Br. at 16 (noting that some studies suggest the copper present in IUDs “can also alter molecules present in the endometrial lining,” which causes “alteration of the endometrial lining [that] prevents . . . implantation” (emphasis added)). Some of our colleagues suggest this debate extends only to intrauterine devices, not Plan B and Ella. See Briscoe Op. at 3. Whatever the merits of this argument, we need not wade into scientific waters here, given the above-noted agreement that some of the challenged devices function in a manner that Hobby Lobby and Mardel find morally problematic.
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HHS regulations currently define a “religious employer” as an organization that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization described in a provision of the Internal Revenue Code that refers to churches, their integrated auxiliaries, conventions or associations of churches, and to the exclusively religious activities of any religious order. See 45 C.F.R. § 147.130(a)(1)(iv)(B).
This definition of religious employer might change, however, as the federal agencies responsible for implementing the preventive services portion of the ACA have proposed a new rule that would eliminate the first three requirements above and clarify that the exemption is available to all non-profit organizations falling within the scope of a certain Internal Revenue Code provision. See 78 Fed. Reg. 8456, 8461 (Feb. 6, 2013).
Second, the government has proposed an accommodation for certain other non-profit organizations, including religious institutions of higher education, that have maintained religious objections to contraceptive coverage yet will not fall within the amended definition of a religious employer. Many of these organizations are currently subject to a temporary “safe harbor” provision that temporarily exempts them from having to cover contraceptive services. The government has proposed to route the contraceptive coverage for these organizations through a middleman insurer or insurance plan administrator,
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allowing the organizations to avoid directly providing contraceptive coverage. See id. at 8458–68.
Third, if a business does not make certain significant changes to its health plans after the ACA’s effective date, those plans are considered “grandfathered” and are exempt from the contraceptive-coverage requirement. See 42 U.S.C. § 18011(a)(2). Grandfathered plans may remain so indefinitely.
Fourth, businesses with fewer than fifty employees are not required to participate in employer-sponsored health plans. See, e.g., 26 U.S.C. § 4980H. To the extent these businesses do not offer a health plan, they do not have to com ply with any aspect of the shared responsibility health coverage requirements, including the contraceptive-coverage requirement. At the same time, the government asserts that if an otherwise exempt small business offers a health plan, it must comply with the contraceptive-coverage requirement. See Aple. Br. at 39 (citing 42 U.S.C. § 300gg-13).
Relying on information released by the White House and HHS, the plaintiffs estimate that at least 50 million people, and perhaps over a 100 million, are covered by exempt health plans. JA 80a. The government argues that the number of grandfathered health plans will decline over time, that grandfathered plans may already cover the objected-to contraceptives, and that financial incentives exist to push small businesses into the health insurance market, in which case they would have to comply with the contraceptive-coverage
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requirement. At the same time, the government has not offered contrary estimates of individuals covered by exempt health plans.
No exemption, proposed or otherwise, would extend to for-profit organizations like Hobby Lobby or Mardel. And the various government agencies responsible for implementing the exceptions to the contraceptive-coverage requirement have announced that no proposed exemption will extend to for-profit entities under any circumstances because of what the government considers an important distinction, discussed further below, between for-profit and non-profit status.
D. The Expected Effect of the Contraceptive-Coverage Requirement The Greens run the Hobby Lobby health plan, a self-insured plan, which provides insurance to both Hobby Lobby and Mardel employees. Hobby Lobby and Mardel cannot qualify for the “grandfathered” status exemption because they elected not to maintain grandfathered status prior to the date that the contraceptive-coverage requirement was proposed. Nevertheless, the Greens object to providing coverage for any FDAapproved contraceptives that would prevent implantation of a fertilized egg. Because the Greens believe that human life begins at conception, they also believe that they would be facilitating harms against human beings if the Hobby Lobby health plan provided coverage for the four FDA-approved contraceptive methods that prevent uterine implantation (Ella, Plan B, and the two IUDs). The
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government does not dispute the sincerity of this belief. The Greens present no objection to providing coverage for the sixteen
remaining contraceptive methods. In other words, the Greens are willing to cover, without cost-sharing, the majority of FDA-approved contraceptive methods, from the original birth control pill to surgical sterilization. But if Hobby Lobby or Mardel employees wish to obtain Ella, Plan B, or IUDs, the Greens object to being forced to provide such coverage.
According to the plaintiffs, the corporations’ deadline to comply with the contraceptive-coverage requirement is July 1, 2013. If the Hobby Lobby health plan does not cover all twenty contraceptive methods by that date, the businesses will be exposed to immediate tax penalties, potential regulatory action, and possible private lawsuits. See, e.g., 26 U.S.C. §§ 4980D, 4980H; 29 U.S.C. §§ 1132, 1185d.
The most immediate consequence for Hobby Lobby and Mardel would come in the form of regulatory taxes: $100 per day for each “individual to whom such failure relates.” 26 U.S.C. § 4980D(b)(1). The plaintiffs assert that because more than 13,000 individuals are insured under the Hobby Lobby plan (which includes Mardel), this fine would total at least $1.3 million per day, or almost $475 million per year. This assumes that “individual” means each individual insured under Hobby Lobby’s plan. If the corporations instead drop employee health insurance altogether, they will face penalties of $26 million per year. See
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id. § 4980H. E. Procedural History The plaintiffs filed suit on September 12, 2012, challenging the
contraceptive-coverage requirement under RFRA, the Free Exercise Clause of the First Amendment, and the Administrative Procedure Act. The plaintiffs simultaneously moved for a preliminary injunction on the basis of their RFRA and Free Exercise claims. The district court denied that motion. See Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012).
The plaintiffs then appealed the denial of the preliminary injunction and moved for injunctive relief pending appeal. A two-judge panel denied relief pending appeal, adopting substantially the same reasoning as the district court. See Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012). The plaintiffs then sought emergency relief under the All Writs Act from the Supreme Court, which also denied relief. See Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641 (2012) (Sotomayor, J., in chambers).
The plaintiffs subsequently moved for initial en banc consideration of this appeal, citing the exceptional importance of the questions presented. We granted that motion. And given Hobby Lobby and Mardel’s July 1 deadline for complying with the contraceptive-coverage requirement, we granted the plaintiffs’ motion to expedite consideration of this appeal.
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II. The Religious Freedom Restoration Act
Hobby Lobby and Mardel’s central claims here arise under the Religious Freedom Restoration Act. A plaintiff makes a prima facie case under RFRA by showing that the government substantially burdens a sincere religious exercise. Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001). The burden then shifts to the government to show that the “compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 420 (2006) (quoting 42 U.S.C. § 2000bb-1(b)). This burden-shifting approach applies even at the preliminary injunction stage. Id. at 429.
The principal questions we must resolve here include: (1) whether Hobby Lobby and Mardel are “persons” exercising religion for purposes of RFRA; (2) if so, whether the corporations’ religious exercise is substantially burdened; and (3) if there is a substantial burden, whether the government can demonstrate a narrowly tailored compelling government interest.
III. Subject-Matter Jurisdiction
Before turning to the preliminary injunction standard, we must resolve two issues that bear on our subject-matter jurisdiction—standing and the AntiInjunction Act.
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A. Standing We begin by examining whether Hobby Lobby and Mardel have standing to sue in federal court. Article III of the Constitution limits federal judicial power to “Cases” and “Controversies.” A party that cannot present a case or controversy within the meaning of Article III does not have standing to sue in federal court. And whenever standing is unclear, we must consider it sua sponte to ensure there is an Article III case or controversy before us. See New Eng. Health Care Emp. Pension Fund v. Woodruff, 512 F.3d 1283, 1288 (10th Cir. 2008). Under the familiar three-part test for establishing Article III standing, a plaintiff must show an injury that is “[1] concrete, particularized, and actual or imminent; [2] fairly traceable to the challenged action; and [3] redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (internal quotation marks omitted). We conclude that Hobby Lobby and Mardel have Article III standing. Both companies face an imminent loss of money, traceable to the contraceptivecoverage requirement. Both would receive redress if a court holds the contraceptive-coverage requirement unenforceable as to them. Both therefore have Article III standing.4
4 The plaintiffs also contend that the Greens, as owners of Hobby Lobby and Mardel, have standing in their own right to bring the claims at issue here. But there is no dispute that relief as to Hobby Lobby and Mardel would satisfy the Greens. Because we conclude RFRA protects Hobby Lobby and Mardel, the
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B. The Anti-Injunction Act A second possible impediment to our subject-matter jurisdiction is the Anti-Injunction Act (AIA). See 26 U.S.C. § 7421. Although the plaintiffs and the government agree that the AIA does not apply here, “subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (internal quotation marks omitted). We therefore have an independent duty to determine whether the AIA strips us of subject-matter jurisdiction. Id. The AIA dictates, with statutory exceptions inapplicable to this case, that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” 26 U.S.C. § 7421(a). As the Supreme Court recently noted, the AIA “protects the Government’s ability to collect a consistent stream of revenue, by barring litigation to enjoin or otherwise obstruct the collection of taxes.” NFIB v. Sebelius, 132 S. Ct. 2566, 2582 (2012). In this case, the corporations’ challenge relates to the government’s authority under 26 U.S.C. § 4980D, which imposes a “tax” on any employer that
4(...continued) majority opinion does not reach whether the Greens may likewise bring RFRA claims based on regulations applying to the companies they own. Four judges would nonetheless conclude the Greens have standing and write separately on this question. See Gorsuch Op. (joined by Kelly and Tymkovich, JJ.), infra; Matheson Op., infra.
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does not meet the ACA’s health insurance requirements, including the contraceptive-coverage requirement. Id. § 4980D(a). As noted above, the “tax” is set at $100 “for each day in the noncompliance period with respect to each individual to whom such failure relates.” Id. § 4980D(b)(1). If an employer fails to provide health insurance, the employer is subject to a tax under § 4980H. And, as the Supreme Court recently instructed, when Congress uses the term“tax,” it is a strong indication that Congress intends the AIA to apply. NFIB, 132 S. Ct. at 2582 (2012).
Still, the AIA does not apply to every lawsuit “tangentially related to taxes,” Cohen v. United States, 650 F.3d 717, 727 (D.C. Cir. 2011) (en banc), and the corporations’ suit is not challenging the IRS’s ability to collect taxes. Rather, they seek to enjoin the enforcement of one HHS regulation, 45 C.F.R. § 147.130, which requires Hobby Lobby and Mardel to provide their employees with health plans that include “preventive care . . . provided for in [the]. . . [HRSA] guidelines,” id. § 147.130(a)(1)(iv), which in turn “require coverage, without cost sharing, for ‘[a]ll [FDA-]approved contraceptive methods,’” 77 Fed. Reg. at 8726 (Feb. 15, 2012). In other words, Hobby Lobby and Mardel are not seeking to enjoin the collection of taxes or the execution of any IRS regulation; they are seeking to enjoin the enforcement, by whatever method, of one HHS regulation that they claim violates their RFRA rights.
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Indeed, a regulatory tax is just one of many collateral consequences that can result from a failure to comply with the contraceptive-coverage requirement. See, e.g., 29 U.S.C. § 1132(a)(5) (authorizing the Secretary of Labor to enforce the contraceptive-coverage requirement against non-compliant insurers); 42 U.S.C. § 300gg-22(a)(2) (authorizing the Secretary of HHS to exact penalties against non-compliant insurers in states where the state government does not enforce the health insurance requirements).
And just as the AIA does not apply to any suit against the individual mandate, which is enforced by the IRS, see NFIB, 132 S. Ct. at 2584, so too does the AIA not apply to any suit against the contraceptive-coverage requirement, even though it also may be enforced by the IRS. The statutory scheme makes clear that the tax at issue here is no more than a penalty for violating regulations related to health care and employer-provided insurance, see, e.g., 42 U.S.C. § 300gg-22(b)(2)(C)(i) (calculating the maximum “penalty” that the Secretary of HHS can impose on non-compliant insurers in the same way that 26 U.S.C. § 4980D(b)(1) calculates the “tax” for non-compliant employers, namely “$100 for each day for each individual with respect to which such a failure occurs”), and the AIA does not apply to “the exaction of a purely regulatory tax,”Robertson v. United States, 582 F.2d 1126, 1127 (7th Cir. 1978).
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Both sides agree that the AIA should not apply for essentially these same reasons. We are convinced by this reasoning and proceed to resolve the merits of the RFRA claim.
IV. Preliminary Injunction Standard
As noted above, the district court denied Hobby Lobby and Mardel’s request for preliminary injunctive relief. We review the denial of a preliminary injunction for abuse of discretion. Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010). A district court abuses its discretion by denying a preliminary injunction based on an error of law. Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009).
Under the traditional four-prong test for a preliminary injunction, the party moving for an injunction must show: (1) a likelihood of success on the merits; (2) a likely threat of irreparable harm to the movant; (3) the harm alleged by the movant outweighs any harm to the non-moving party; and (4) an injunction is in the public interest. See, e.g., Winter v. NRDC, 555 U.S. 7, 20 (2008).
Hobby Lobby and Mardel urge that we apply a relaxed standard under which it can meet its burden for a preliminary injunction by showing the second, third, and fourth factors “tip strongly in [its] favor,” and then satisfy the first factor “by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Okla. ex rel. Okla. Tax Comm’n v. Int’l
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Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006). But we need not resolve whether this relaxed standard would apply here, given that a majority of the court holds that Hobby Lobby and Mardel have satisfied the likelihood-ofsuccess prong under the traditional standard.
The district court ruled that the corporations failed the likelihood-ofsuccess element because even closely held family businesses like Hobby Lobby and Mardel are not protected by RFRA.
We disagree with this conclusion and determine that the contraceptivecoverage requirement substantially burdens Hobby Lobby and Mardel’s rights under RFRA. And at this stage, the government has not shown a narrowly tailored compelling interest to justify this burden.
V. Merits
A. Hobby Lobby and Mardel Are “Persons Exercising Religion” Under RFRA RFRA provides, as a general rule, that the “Government shall not substantially burden a person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a) (emphasis added). The parties dispute whether for-profit corporations, such as Hobby Lobby and Mardel, are persons exercising religion for purposes of RFRA. We thus turn to the question of whether Hobby Lobby, as a family owned business furthering its religious mission, and Mardel, as a Christian bookstore, can take advantage of RFRA’s protections.
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The government makes two arguments for why this is not the case. First, it cites to civil rights statutes and labor laws that create an exemption for religious organizations. It then references case law suggesting that non-profit status is an objective criterion for determining whether an entity is a religious organization for purposes of these civil rights statutes and labor laws. The government therefore argues that, as a matter of statutory interpretation, RFRA should be read to carry forward the supposedly preexisting distinction between non-profit, religious corporations and for-profit, secular corporations. Second, the government asserts that the for-profit/non-profit distinction is rooted in the Free Exercise Clause. It suggests Congress did not intend RFRA to expand the scope of the Free Exercise Clause. The government therefore concludes RFRA does not extend to for-profit corporations.
We reject both of these arguments. First, we hold as a matter of statutory interpretation that Congress did not exclude for-profit corporations fromRFRA’s protections. Such corporations can be “persons” exercising religion for purposes of the statute.5 Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations.
5 We recognize there is at least tentative disagreement among the courts of appeal on this question. Compare, e.g., Grote v. Sebelius, 708 F.3d 850, 855–56 (7th Cir. 2013) (corporation is a “person” for purposes of RFRA), with Conestoga Wood Specialities Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs. , No. 13-1144, 2013 WL 1277419, at *2 (3d Cir. Feb. 8, 2013) (corporation is not a “person” under RFRA).
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1. Statutory Interpretation
a. The Dictionary Act
We begin with the statutory text. RFRA contains no special definition of
“person.” Thus, our first resource in determining what Congress meant by
“person” in RFRA is the Dictionary Act, which instructs: “In determining the
meaning of any Act of Congress, unless the context indicates otherwise * * * the
word[] ‘person’ . . . include[s] corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as well as individuals.”
1 U.S.C. § 1. Thus, we could end the matter here since the plain language of the
text encompasses “corporations,” including ones like Hobby Lobby and Mardel.
In addition, the Supreme Court has affirmed the RFRA rights of corporate
claimants, notwithstanding the claimants’ decision to use the corporate form. See
O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 973
(10th Cir. 2004) (en banc) (affirming a RFRA claim brought by “a New Mexico
corporation on its own behalf”), aff’d, 546 U.S. 418 (2006).6
6 We further note that RFRA defines religious exercise by cross-reference to the Religious Land Use and Institutionalized Persons Act (RLUIPA). See 42 U.S.C. § 2000bb-2(4) (“the term ‘exercise of religion’ means religious exercise, as defined in section 2000cc-5 of this title”). According to the relevant portion of RLUIPA, “‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Id. § 2000cc-5(7)(A). RLUIPA further notes that both “person[s]” and “entit[ies]” can exercise the religious rights it grants. Id. § 2000cc-5(7)(B). RLUIPA therefore provides further support that RFRA, to which it is linked, encompasses both natural persons and anything that qualifies as an “entity”— which of course would
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b. Other Statutes Given that no one disputes at least some types of corporate entities can bring RFRA claims, the next question is whether Congress intended to exclude for-profit corporations, as opposed to non-profit corporations, from RFRA’s scope. Notably, neither the Dictionary Act nor RFRA explicitly distinguishes between for-profit and non-profit corporations; the Dictionary Act merely instructs that the term “persons” includes corporations. At the same time, we acknowledge the Dictionary Act definition does not apply if “the context indicates otherwise.” 1 U.S.C. § 1. Generally, “context” here “means the text of the Act of Congress surrounding the word at issue, or the text of other related congressional Acts.” Rowland v. Cal. Men’s Colony, 506 U.S. 194, 199 (1993). The government contends that RFRA’s “context” points to exemptions for religious employers in other statutes, and in particular it directs us to the religious exemptions contained in Title VII, the Americans with Disabilities Act (ADA), and the National Labor Relations Act (NLRA). But rather than providing contextual support for excluding for-profit corporations from RFRA, we think these exemptions show that Congress knows how to craft a corporate religious exemption, but chose not to do so in RFRA.
6(...continued) encompass corporations. And this definition likewise does not distinguish between for-profit and non-profit status or between religious and secular entities.
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Under Title VII, for example, the prohibition on discrimination on the basis of religion does not apply to an employer that is “a religious corporation, association, educational institution, or society.” 42 U.S.C. §2000e-1(a). The ADA contains similar language. See id. § 12113(d)(1), (2). The government also notes that the Supreme Court has construed the NLRA to remove the National Labor Relations Board’s jurisdiction over schools operated by churches. See NLRB v. Catholic Bishop, 440 U.S. 490 (1979).7
The government argues that in enacting RFRA against the backdrop of these statutes, Congress “carried forward [a] distinction between non-profit, religious organizations and for-profit, secular companies.’” Aple. Br. at 16. In short, the government believes Congress used “person” in RFRA as extreme shorthand for something like “natural person or ‘religious organization’ as that term was used in exemptions for religious organizations as set forth in Title VII, the ADA, and the NLRA.”
This reading strikes us as strained. Indeed, the exemptions present in Title VII, the ADA, and the NLRA suggest the opposite inference from what the
7 Catholic Bishop turned on constitutional avoidance, not on statutory text or congressional intent. See id. at 507 (“in the absence of a clear expression of Congress’[s] intent to bring teachers in church-operated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses”). But for present purposes we will accept the government’s characterization of Catholic Bishop as “context” for RFRA.
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government draws. Rather than implying that similar narrowing constructions should be imported into statutes that do not contain such language, they imply Congress is quite capable of narrowing the scope of a statutory entitlement or affording a type of statutory exemption when it wants to. The corollary to this rule, of course, is that when the exemptions are not present, it is not that they are “carried forward” but rather that they do not apply. Cf. Chickasaw Nation v. United States, 208 F.3d 871, 880 (10th Cir. 2000) (holding, in light of the fact that Congress had created a number of other tax exemptions for Indian tribes, “[i]f Congress wishes to exempt Indian tribes from excise taxes that otherwise might be reasonably construed as applying to them, it should do so explicitly”), aff’d, 534 U.S. 84 (2001).
In addition, Congress knows how to ensure that a prior-enacted statute restricts the meaning of a later-enacted statute. RFRA is just such a statute, restricting later-enacted federal statutes unless those statutes specifically exempt themselves. See 42 U.S.C. § 2000bb-3(b). Congress put nothing similar in Title VII, the ADA, or the NLRA.
c. Case Law The government nonetheless points to Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987), for the idea that the for-profit/non-profit distinction was well-established in
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Congress’s mind before it enacted RFRA. We disagree with the government’s interpretation of Amos.
Amos involved employees of non-profit and arguably non-religious businesses run by the Mormon Church. These businesses had fired certain Mormon employees who did not follow church behavioral standards, and the employees sued under Title VII. The Church moved to dismiss based on Title VII’s exemption for “religious corporation[s],” 42 U.S.C. §2000e-1(a)—the same exemption on which the government bases its argument that Congress intended to limit RFRA to non-profit entities.
The plaintiffs countered “that if construed to allow religious employers to discriminate on religious grounds in hiring for nonreligious jobs, [the exemption] violates the Establishment Clause.” Amos, 483 U.S. at 331 (emphasis added). The district court agreed, reasoning in part that Title VII’s exemption unlawfully advanced religion because it could “permit churches with financial resources impermissibly to extend their influence and propagate their faith by entering the commercial, profit-making world.” Id. at 337.
The Supreme Court reversed. It concluded this particular part of the district court’s reasoning was incorrect because it assumed the existence of forprofit activities yet none of the Mormon businesses at issue operated on a forprofit basis. The Court never reached the question of how for-profit activity might have changed its analysis. Id.
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Two Amos concurrences raised concerns about religion-sponsored for-profit activity more explicitly. But both concurrences were careful not to categorically exclude such activity from Title VII’s exemption. See id. at 345 n.6 (Brennan, J., concurring) (emphasizing that the non-profit distinction was important but also noting “[i]t is . . . conceivable that some for-profit activities could have a religious character”); id. at 349 (O’Connor, J., concurring) (noting that the question “remains open” whether “activities conducted by religious organizations solely as profit-making enterprises” would qualify as religious).
From these references to non-profit status in Amos, the government concludes that the for-profit/non-profit distinction matters a great deal. But we do not see what the government sees in Amos. Amos was about whether Title VII’s religious exemption violates the Establishment Clause. The Amos majority rendered no opinion on how for-profit activity might affect that question. At best, then, Amos leaves open the question of whether for-profit status matters for Title VII’s religious employer exemption. We do not see how it provides the “context” that would render the Dictionary Act’s definition of “person” inappropriate in RFRA.
Nor do the other post-RFRA circuit cases on which the government relies provide more guidance. The government cites Spencer v. World Vision, Inc., 633 F.3d 723 (9th Cir. 2010) (per curiam), and University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002). The question inSpencer was whether a faith-based
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humanitarian organization could receive the same Title VII exemption at issue in Amos. In a fractured opinion, the court concluded the organization was eligible, in part because it did not engage in for-profit business activity. ButSpencer established no categorical rule regarding for-profit entities. Judge O’Scannlain, in explaining why he agreed to make non-profit status a relevant consideration, nonetheless noted that Amos left open the potential effect of for-profit status. Id. at 734 & n.13 (O’Scannlain, J., concurring).
The D.C. Circuit’s Great Falls decision comes to essentially the same place, concluding that for-profit status can be one relevant factor among others when it comes to certain religious exemptions. In that case, the University of Great Falls contended that it was exempt from NLRB jurisdiction under both Catholic Bishop and RFRA. The D.C. Circuit adopted a three-factor test for the NLRB to use “to determine whether it has jurisdiction [over a school claiming the Catholic Bishop exemption] without delving into matters of religious doctrine or motive, and without coercing an educational institution into altering its religious mission to meet regulatory demands.” Great Falls, 278 F.3d at 1345. Among the three factors was whether the institution “is organized as a nonprofit.” Id. at 1343 (internal quotation marks omitted).
But Great Falls did not say that only non-profits can qualify for the Catholic Bishop exemption. See id. (“non-profit institutions have a more compelling claim to a Catholic Bishop exemption than for-profit businesses”).
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Moreover, the opinion made clear that its analysis did not settle anything as to RFRA: “a ruling that an entity is not exempt from [NLRB] jurisdiction under Catholic Bishop may not foreclose a [RFRA] claim that requiring that entity to engage in collective bargaining would ‘substantially burden’ its ‘exercise of religion.’” Id. at 1347.
To the extent the government believes Spencer and Great Falls form part of what “Congress carried forward” when enacting RFRA, Aple. Br. at 16,Spencer and Great Falls, of course, post-date RFRA. Congress therefore could not have carried them forward into RFRA. And to the extent the government sees Spencer and Great Falls as following principles laid down in Amos—which pre-dates RFRA—we disagree. Amos decides nothing about for-profit entities’ religious rights. In short, none of these cases say anything about what Congress intended in RFRA.8
In conclusion, the government has given us no persuasive reason to think that Congress meant “person” in RFRA to mean anything other than its default meaning in the Dictionary Act—which includes corporations regardless of their
8 We also note that even the dissent in Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013), would not establish a categorical rule against for-profit religious exercise. Grote involved a car parts business, but the dissent opined that “there do exist some corporate entities which are organized expressly to pursue religious ends, and I think it fair to assume that such entities may have cognizable religious liberties independent of the people who animate them, even if they are profitseeking.” Id. at 856 (Rovner, J., dissenting).
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profit-making status.9
2. Free Exercise
The government further argues that the “[t]he distinction between
non-profit, religious organizations and for-profit, secular companies is rooted in
the text of the First Amendment,” Aple. Br. at 12 (internal quotation marks
omitted). It claims this understanding of the First Amendment informed what
Congress intended by “person” in RFRA. Undoubtedly, Congress’s
understanding of the First Amendment informed its drafting of RFRA, but we see
no basis for concluding that such an understanding included a for-profit/non-
profit distinction.
a. RFRA’s Purpose
RFRA was Congress’s attempt to legislatively overrule Employment
Division v. Smith, 494 U.S. 872 (1990). Smith had abrogated much of the
Supreme Court’s earlier jurisprudence regarding whether a neutral law of general
9 The dissents suggest we have improperly placed the burden of persuasion on the government rather than the plaintiffs in our assessment of whether Hobby Lobby and Mardel are persons exercising religion for purposes of RFRA. See Briscoe Op. at 10-11 & n.3; Matheson Op. at 4–11. The question of the allocation of a burden for satisfying the preliminary injunction factors—which we agree rests with the plaintiffs—and the force of the legal arguments advanced by both sides are two different things. The default presumption is that the Dictionary Act applies. Rowland, 506 U.S. at 200. Regardless of who bears the overall burden of persuasion, we do not think it is the plaintiffs’ duty to prove a negative— i.e., to offer up all possible “context[s]” that might “indicate otherwise,” 1 U.S.C. § 1—and then refute them. In our adversarial system, arguments for otherwiseindicating context naturally come from the party opposing the Dictionary Act’s definition. The government’s arguments in this regard do not convince us.
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application nonetheless impermissibly burdened a person’s Free Exercise rights. The pre-Smith test exempted such a person from the law’s constraints unless the government could show a compelling need to apply the law to the person. Id. at 882–84. Smith eliminated that test on the theory that the Constitution permits burdening Free Exercise if that burden results from a neutral law of general application. Id. at 878–80.
Congress responded to Smith by enacting RFRA, which re-imposed a stricter standard on both the states and the federal government. The Supreme Court held that Congress could not constitutionally apply RFRA to the states,City of Boerne v. Flores, 521 U.S. 507, 532 (1997), but RFRA still constrains the federal government, Kikumura, 242 F.3d at 959.
Congress, through RFRA, intended to bring Free Exercise jurisprudence back to the test established before Smith. There is no indication Congress meant to alter any other aspect of pre-Smith jurisprudence—including jurisprudence regarding who can bring Free Exercise claims. We therefore turn to that jurisprudence.
b. Corporate and For-Profit Free Exercise Rights It is beyond question that associations—not just individuals—have Free Exercise rights: “An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort
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toward those ends were not also guaranteed.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (emphasis added). Therefore, courts have “recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.” Id. at 618 (emphasis added); see also Citizens United v. FEC, 558 U.S. 310, 342–43 (2010) (“First Amendment protection extends to corporations . . . [, and the Court] has thus rejected the argument that . . . corporations or other associations should be treated differently under the First Amendment simply because such associations are not natural persons.” (internal quotation marks omitted)).
Accordingly, the Free Exercise Clause is not a “‘purely personal’ guarantee[] . . . unavailable to corporations and other organizations because the ‘historic function’ of the particular [constitutional] guarantee has been limited to the protection of individuals.” First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 778 n.14 (1978). As should be obvious, the Free Exercise Clause at least extends to associations like churches—including those that incorporate. See, e.g., Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (holding that a “not-for-profit corporation organized under Florida law” prevailed on its Free Exercise claim); see also Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 49 (1815) (Story, J.) (“[The] legislature may . . . enable all sects to accomplish the
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great objects of religion by giving them corporate rights for the manag[e]ment of their property, and the regulation of their temporal as well as spiritual concerns.”).
In addition, the Supreme Court has settled that individuals have Free Exercise rights with respect to their for-profit businesses. See, e.g., United States v. Lee, 455 U.S. 252 (1982) (considering a Free Exercise claimof an Amish employer); Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion) (considering a Free Exercise claim by Jewish merchants operating for-profit).
In short, individuals may incorporate for religious purposes and keep their Free Exercise rights, and unincorporated individuals may pursue profit while keeping their Free Exercise rights. With these propositions, the government does not seem to disagree. The problem for the government, it appears, is when individuals incorporate and fail to satisfy Internal Revenue Code § 501(c)(3). At that point, Free Exercise rights somehow disappear.
This position is not “rooted in the text of the First Amendment,” Aple. Br. at 12, and therefore could not have informed Congress’s intent when enacting RFRA. As an initial matter, the debates in Congress surrounding the adoption of the First Amendment demonstrate an intent to protect a range of conduct broader than the mere right to believe whatever one chooses. Indeed, at the time of the amendment’s inception in Congress, a competing formulation for the “free exercise of religion” was “rights of conscience.” See Michael W. McConnell, The
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Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1488 (1990) [hereinafter McConnell, The Origins]; see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 702 (2012) (citing McConnell, The Origins, supra). As compared to exercise, which “strongly connoted action” in the language of the day, “conscience” suggested mere thoughts, opinions, or internal convictions. McConnell, The Origins, supra at 1489. Congress chose exercise, indicating that, as the Supreme Court has frequently held, the protections of the Religion Clauses extend beyond the walls of a church, synagogue, or mosque to religiously motivated conduct, as well as religious belief. Id. at 1488–89.
The distinction gains force here because religious conduct includes religious expression, which can be communicated by individuals and for-profit corporations alike. See Smith, 494 U.S. at 877–78 (1990); see also Lee Strang, The Meaning of “Religion” in the First Amendment, 40 Duq. L. Rev. 181, 234 (2002) (stating that the shift from “conscience” to “religion” “connote[d] a ‘community of believers’ and allow[ed] for protection of the ‘corporate or institutional aspect of religious belief’” (footnote omitted)); McConnell, The Origins, supra at 1490 (stating that an “important difference between the terms ‘conscience’ and ‘religion’ is that ‘conscience’ emphasizes individual judgment, while ‘religion’ also encompasses the corporate or institutional aspects of religious belief” (footnote omitted)). For example, the Supreme Court has stated
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that the exercise of religion includes “proselytizing.” Smith, 494 U.S. at 877. And, as discussed above, Hobby Lobby and Mardel—two for-profit corporations —proselytize by purchasing hundreds of newspaper ads to “know Jesus as Lord and Savior.” JA 24a. Because Hobby Lobby and Mardel express themselves for religious purposes, the First Amendment logic of Citizens United, 558 U.S. at 342–55, where the Supreme Court has recognized a First Amendment right of forprofit corporations to express themselves for political purposes, applies as well. We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.
We also believe that a constitutional distinction would conflict with the Supreme Court’s Free Exercise precedent. First, we cannot see why an individual operating for-profit retains Free Exercise protections but an individual who incorporates—even as the sole shareholder—does not, even though he engages in the exact same activities as before. This cannot be about the protections of the corporate form, such as limited liability and tax rates. Religious associations can incorporate, gain those protections, and nonetheless retain their Free Exercise rights.
Moreover, when the Supreme Court squarely addressed for-profit individuals’ Free Exercise rights in Lee and Braunfeld, its analysis did not turn on the individuals’ unincorporated status. Nor did the Court suggest that the Free Exercise right would have disappeared, using a more modern formulation, in a
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general or limited partnership, sole professional corporation, LLC, S-corp, or closely held family business like we have here.10
In addition, sincerely religious persons could find a connection between the exercise of religion and the pursuit of profit. Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices? The kosher butcher, of course, might directly serve a religious community—as Mardel, a Christian bookstore, does here. But we see no reason why one must orient one’s business toward a religious community to preserve Free Exercise protections. A religious individual may enter the forprofit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values. As a court, we do not see how we can distinguish this form of evangelism from any other.
We are also troubled—as we believe Congress would be—by the notion that Free Exercise rights turn on Congress’s definition of “non-profit.” What if Congress eliminates the for-profit/non-profit distinction in tax law? Do for-profit corporations then gain Free Exercise rights? Or do non-profits lose Free Exercise rights? Or what if Congress, believing that large organizations are less likely to have a true non-profit motive, declares that non-profit entities may not have more
10 To the extent the government believes the for-profit/non-profit distinction derives from the nature of business versus religion, we note that the varieties of corporate form do not mirror such a bright-line rule. See, e.g., Cal. Corp. Code §§ 14600–31 (establishing “benefit corporations” that may pursue profits while balancing social welfare goals).
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than 1,000 employees? Would a church with more than 1,000 employees lose its Free Exercise rights? Or consider a church that, for whatever reason, loses its 501(c)(3) status. Does it thereby lose Free Exercise rights?
To hypotheticals like these, the government cites to the Supreme Court’s recent Hosanna-Tabor decision, where the Court recognized a ministerial exception that foreclosed review of the propriety of the decision of a “church” (understood in a broad sense that includes all religions) to hire or retain a “minister” (with the same broad meaning). In recognizing this ministerial exception, the Court found the exception precluded a claimbrought under the Americans with Disabilities Act by a former employee of a school run by a denomination of the Lutheran church. The Court reiterated the uncontroversial proposition that “the text of the First Amendment . . . gives special solicitude to the rights of religious organizations.” Hosanna-Tabor, 132 S. Ct. at 706. From this language, the government draws a narrow application of the Free Exercise Clause.
We do not share this interpretation. The main point of the Court was that the Religion Clauses add to the mix when considering freedom of association. See also id. at 712–13 (Alito, J., concurring) (“As the Court notes, the First Amendment ‘gives special solicitude to the rights of religious organizations,’but our expressive-association cases are nevertheless useful in pointing out what . . . essential rights are [held by religious organizations].” (emphasis added)). But it
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does not follow that because religious organizations obtain protections through the Religion Clauses, all entities not included in the definition of religious organization are accorded no rights.
And, by relying on this language from Hosanna-Tabor, the government appears to concede that the for-profit/non-profit distinction is actually immaterial even under its own theory of the case. Under the government’s position, only “religious organizations” receive Free Exercise rights. Any other organization, non-profit or for-profit, could not receive such protection. ButHosanna-Tabor was not deciding for-profit corporations’ Free Exercise rights, and it does not follow that the Congress which enacted RFRA would have understood the First Amendment to contain such a bright-line rule.
The district court, nonetheless, saw incongruence between Free Exercise rights and the corporate form: “General business corporations . . . do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” Hobby Lobby, 870 F. Supp. 2d at 1291. But this is equally true of churches or other entities that exercise religion. The Church of Lukumi Babalu Aye, Inc., for example, did not itself pray, worship, or observe sacraments—nor did the sect in
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O Centro. But both certainly have Free Exercise rights. See O Centro, 546 U.S.
at 423; Lukumi, 508 U.S. at 525.11
The government nonetheless raises the specter of future cases in which, for
example, a large publicly traded corporation tries to assert religious rights under
RFRA. That would certainly seem to raise difficult questions of how to
determine the corporation’s sincerity of belief. But that is not an issue here.
Hobby Lobby and Mardel are not publicly traded corporations; they are closely
held family businesses with an explicit Christian mission as defined in their
governing principles. The Greens, moreover, have associated through Hobby
Lobby and Mardel with the intent to provide goods and services while adhering to
Christian standards as they see them, and they have made business decisions
according to those standards. And the Greens are unanimous in their belief that
the contraceptive-coverage requirement violates the religious values they attempt
to follow in operating Hobby Lobby and Mardel. It is hard to com pare them to a
large, publicly traded corporation, and the difference seems obvious. Thus, we do
11 This is not a special case of associational standing. Associational standing requires, among other things, that all members of the association “would otherwise have standing to sue in their own right.” S. Utah Wilderness Alliance v. Office of Surface Mining Reclamation & Enforcement, 620 F.3d 1227, 1246 (10th Cir. 2010). Although this may often be true for religious organizations, we are aware of no case in which it has been set forth as a requirem ent. When a religious organization sues in its own right, we do not ask, for example, whether every member of the religious group shares the same belief and therefore faces the same infringement on his or her belief. We accept the entity for what it claims to represent, regardless of unity among the individuals that associate through that entity.
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not share any concerns that our holding would prevent courts fromdistinguishing
businesses that are not eligible for RFRA’s protections.
We need not decide today whether any of these factors is necessary, but we
conclude that their collective presence here is sufficient for Hobby Lobby and
Mardel to qualify as “persons” under RFRA.12
B. Substantial Burden
The next question is whether the contraceptive-coverage requirement
constitutes a substantial burden on Hobby Lobby and Mardel’s exercise of
religion.
The government urges that there can be no substantial burden here because
“[a]n employee’s decision to use her health coverage to pay for a particular item
or service cannot properly be attributed to her employer.” Aple. Br. at 13. There
12 The dissenters refer to this analysis as a departure from First Amendment law. See Briscoe Op. at 16; Matheson Op. at 10–11. Not so. Where did Hobby Lobby and Mardel lose their Free Exercise rights? Was it when they incorporated? This alone cannot be the relevant trigger because religions may incorporate as well. Was it when they began operating for-profit? Again, this alone cannot be the relevant event because the Supreme Court in Lee and Braunfeld recognized Free Exercise rights in a for-profit context. Is it because Hobby Lobby and Mardel do not have an explicitly religious purpose, like a church? Once again, this alone cannot be the relevant distinction. Lee and Braunfeld demonstrate that activities without an explicitly religious purpose still implicate Free Exercise rights.
In noting that the claim presented by Hobby Lobby and Mardel may differ from that of a publicly traded company, Chief Judge Briscoe also implies that we have created some sort of problematic multi-factor test for future RFRA claims. See Briscoe Op. at 18–22. But our holding simply reflects the facts presented here and explains their relevance to the statutory analysis.
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are variations on this same theme in many of the amicus briefs supporting the government’s position, all of which stand for essentially the same proposition: one does not have a RFRA claim if the act of alleged government coercion somehow depends on the independent actions of third parties.
This position is fundamentally flawed because it advances an understanding of “substantial burden” that presumes “substantial” requires an inquiry into the theological merit of the belief in question rather than theintensity of the coercion applied by the government to act contrary to those beliefs. In isolation, the term “substantial burden” could encompass either definition, but for the reasons explained below, the latter interpretation prevails. Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.
No one disputes in this case the sincerity of Hobby Lobby and Mardel’s religious beliefs. And because the contraceptive-coverage requirement places substantial pressure on Hobby Lobby and Mardel to violate their sincere religious beliefs, their exercise of religion is substantially burdened within the meaning of RFRA.
1. The Substantial Burden Test Our most developed case discussing the substantial burden test is Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010). InAbdulhaseeb, we were required to resolve a RFRA claim brought by Madyun Abdulhaseeb, a
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Muslim prisoner who raised a religious objection to the prison’s failure to provide him a halal diet. Abdulhaseeb alleged that the prison cafeteria’s failure to serve halal food violated his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), a statute that adopts RFRA’s “substantial burden” standard.13
In analyzing Abdulhaseeb’s claim, we held that a government act imposes a “substantial burden” on religious exercise if it: (1) “requires participation in an activity prohibited by a sincerely held religious belief,” (2) “prevents participation in conduct motivated by a sincerely held religious belief,” or (3) “places substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely held religious belief.” Id. at 1315. Our analysis in Abdulhaseeb only concerned the third prong of this test, related to “substantial pressure.” As we will explain below, the same is true here.
The substantial pressure prong rests firmly on Supreme Court precedent, in particular: Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981), and United States v. Lee, 455 U.S. 252 (1982).
The plaintiff in Thomas was a Jehovah’s Witness who had worked for a company that owned both a foundry and factory. The foundry processed sheet steel for a variety of industrial purposes. The factory manufactured turrets for
13 Congress intended the substantial burden tests in RFRA and RLUIPA to be interpreted uniformly. See Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 661 (10th Cir. 2006).
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military tanks. The plaintiff started working at the foundry but was transferred to the factory. Although he had no objection to working in the foundry, he raised a religious objection to his factory job, claiming that “he could not work on weapons without violating the principles of his religion.” Thomas, 450 U.S. at 710. He quit his job and was eventually denied unemployment benefits. He then challenged this decision as improperly burdening his right to exercise his religion, a claim which ultimately reached the Supreme Court.
In considering the Free Exercise claim, the Court noted that the plaintiff could not clearly articulate the basis for the difference between processing steel that might be used in tanks and manufacturing the turrets themselves. Id. at 715. But that was not relevant to resolving the plaintiff’s claim. Rather, the Court observed, “the judicial process is singularly ill equipped to resolve such differences in relation to the Religion Clauses.” Id. Further, “[p]articularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner . . . correctly perceived the commands of [his] faith. Courts are not arbiters of scriptural interpretation.” Id. at 716 (internal quotation marks omitted).
As to the distinction between factory and foundry work, the Court reasoned that “[the plaintiff’s] statements reveal no more than that he found work in the . . . foundry sufficiently insulated from producing weapons of war. We see, therefore, that [the plaintiff] drew a line, and it is not for us to say that the line he
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drew was an unreasonable one.” Id. at 715. In other words, the distinction that the plaintiff drew was not as important as the fact that he made it based upon his religious beliefs. Once the plaintiff drew this line, it did not matter whether the line was “acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Id. at 714.
Accepting the plaintiff’s religious beliefs as sincere, the Court then examined “the coercive impact” upon him of being “put to a choice between fidelity to religious belief or cessation of work.” Id. at 717. On that score, the Court found a substantial burden:
Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial. Id. at 717–18 (emphasis added). United States v. Lee similarly demonstrates that the burden analysis does not turn on whether the government mandate operates directly or indirectly, but on the coercion the claimant feels to violate his beliefs. The question in Lee was “whether the payment of social security taxes and the receipt of benefits interferes with the free exercise rights of the Amish.” 455 U.S. at 256–57. The Court first identified the religious belief at issue, namely, that “it [is] sinful [for the Amish]
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not to provide for their own elderly and needy,” and it is concomitantly sinful to pay into the social security system and thereby enable other Amish to shirk their duties toward the elderly and needy. Id. at 255 & n.3. Thus, the belief at issue in Lee turned in part on a concern of facilitating others’ wrongdoing.
In responding to Lee’s claims, the government did not question the sincerity of the plaintiff’s belief, but it did raise a direct/indirect argument, i.e., “that payment of social security taxes will not threaten the integrity of the Amish religious belief or observance.” Id. at 257. As in Thomas, the Court in Lee would not indulge the government on this point, reasoning simply that “[i]t is not within the judicial function and judicial competence . . . to determine whether” a plaintiff “has the proper interpretation of [his] faith.” Id. (internal quotation marks omitted).
The Court in Lee found “a conflict between the Amish faith and the obligations imposed by the social security system.” Id. But, it said, “[n]ot all burdens on religion are unconstitutional.” Id. The Court concluded, under the circumstances, that the burden was justified by “the Government’s interest in assuring mandatory and continuous participation in and contribution to the social security system”—an interest which the Court described as “very high.” Id. at 258–59. The Court determined that this interest justified the acknowledged
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burden on religious belief. Id.14 But again, the analysis did not turn on whether the Amish faced direct or indirect coercion or whether the supposed violations of their faith turned on actions of independent third parties. The Court recognized the belief for what it was, accepted that the government was imposing a burden, and then analyzed the strength of the government’s interest.
Given the foregoing, our first step in Abdulhaseeb was to identify the belief in question—the immorality of a non-halal diet—and to determine if the belief was sincerely held. Finding it was, we stated that “the issue is not whether the lack of a halal diet that includes meats substantially burdens the religious exercise of any Muslim practitioner, but whether it substantially burdens Mr. Abdulhaseeb’s own exercise of his sincerely held religious beliefs.” 600 F.3d at 1314 (emphasis in original). We concluded that the prison cafeteria’s “failure to provide a halal diet either prevents Mr. Abdulhaseeb’s religious exercise, or, at the least, places substantial pressure on Mr. Abdulhaseeb not to engage in his religious exercise by presenting him with a Hobson’s choice—either he eats a non-halal diet in violation of his sincerely held beliefs, or he does not eat.” Id. at 1317. Thus, the plaintiff faced a substantial burden.
14 The Free Exercise interest in Lee would today be described in the RFRA context as a “substantial burden on religious exercise,” albeit one justified by a compelling government interest. See O Centro, 546 U.S. at 421. Further, the government agreed at oral argument that it is correct to view Lee as a case in which the Court found a “substantial burden” for purposes of the framework in RFRA.
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2. Applying the Substantial Burden Test The claims of Hobby Lobby and Mardel are similar to those raised in Thomas, Lee, and Abdulhaseeb, and the framework provided in those cases guides our analysis. First, we must identify the religious belief in this case. The corporate plaintiffs believe life begins at conception. Thus, they have what they describe as “a sincere religious objection to providing coverage for Plan B and Ella since they believe those drugs could prevent a human embryo . . . from implanting in the wall of the uterus, causing the death of the embryo.” JA 35a. And they allege a “sincere religious objection to providing coverage for certain contraceptive [IUDs] since they believe those devices could prevent a human embryo from implanting in the wall of the uterus, causing the death of the embryo.” Id. Further, Hobby Lobby and Mardel object to “participating in, providing access to, paying for, training others to engage in, or otherwise supporting” the devices and drugs that yield these effects. Aplt. Br. at 27 (citing JA 14a). Second, we must determine whether this belief is sincere. The government does not dispute the corporations’ sincerity, and we see no reason to question it either.15
15 “One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here . . . .” Thomas, 450 U.S. at 715. The assertion that life begins at conception is familiar in modern religious
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Third, we turn to the question of whether the government places substantial pressure on the religious believer. Here, it is difficult to characterize the pressure as anything but substantial. To the extent Hobby Lobby and Mardel provide a health plan, they would be fined $100 per employee, per day the plan does not meet the contraceptive-coverage requirement. 26 U.S.C. § 4980D(b)(1). With over 13,000 employees, that comes to more than $1.3 million per day, or close to $475 million per year. And if Hobby Lobby and Mardel simply stop offering a health plan—dropping health insurance for more than 13,000 employees—then the companies must pay about $26 million per year, see id. § 4980H(c)(1) (fining employer $2,000 per employee per year), and put themselves “at a competitive disadvantage in [their] efforts to recruit and retain employees,” JA 40a.
With this dilemma created by the statute, we believe that Hobby Lobby and Mardel have made a threshold showing regarding a substantial burden. Ordinarily, the question of substantial burden would involve subsidiary factual issues. See Kikumura, 242 F.3d at 961; id. at 966 (Holloway, J., concurring in part and dissenting in part); id. at 966–67 (Ebel, J., concurring). But in the district court, the government did not question the significance of the financial burden. And, the government has not done so in this appeal. Thus, the district court record leaves only one possible scenario: Hobby Lobby and Mardel
15(...continued) discourse, although of course not universally held. Moral culpability for enabling a third party’s supposedly immoral act is likewise familiar.
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incurred a substantial burden on their ability to exercise their religion because the law requires Hobby Lobby and Mardel to:
! compromise their religious beliefs, ! pay close to $475 million more in taxes every year, or ! pay roughly $26 million more in annual taxes and drop health-
insurance benefits for all employees. This is precisely the sort of Hobson’s choice described inAbdulhaseeb, and Hobby Lobby and Mardel have established a substantial burden as a matter of law.
3. The Government’s Arguments The government resists this conclusion, contending the regulations place no burden on Hobby Lobby or Mardel. It insists the insurance coverage at issue is just another form of non-wage compensation—supposedly the equivalent of money—and therefore should not present problems under RFRA. Such reasoning cannot be squared with the Supreme Court’s holding in Thomas. The Supreme Court emphasized that when the plaintiff drew a moral line between foundry and factory work, it was not the Court’s prerogative to determine whether the line he drew “was an unreasonable one.” Thomas, 450 U.S. at 715. Just so here: Hobby Lobby and Mardel have drawn a line at providing coverage for drugs or devices they consider to induce abortions, and it is not for
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us to question whether the line is reasonable. This is especially so given that
Hobby Lobby and Mardel stand in essentially the same position as the Amish
carpenter in Lee, who objected to being forced to pay into a systemthat enables
someone else to behave in a manner he considered immoral. That is precisely the
objection of Hobby Lobby and Mardel. It is not the employees’ health care
decisions that burden the corporations’ religious beliefs, but the government’s
demand that Hobby Lobby and Mardel enable access to contraceptives that Hobby
Lobby and Mardel deem morally problematic. As the Supreme Court accepted the
religious belief in Lee, so we must accept Hobby Lobby and Mardel’s beliefs.16
For similar reasons, the government’s reliance on Zelman v. Simmons-
Harris, 536 U.S. 639 (2002), and Board of Regents v. Southworth, 529 U.S. 217
(2000), is misplaced. First, in Zelman, the Supreme Court addressed an
16 At oral argument, the concern was raised whether our ruling here would permit Hobby Lobby and Mardel to withhold wages on religious grounds if they knew the wages would be used to purchase the objected-to contraceptives. This argument ignores the fact that the government can justify a substantial burden on religious exercise by demonstrating a compelling interest, and uniform enforcement of labor laws such as the Fair Labor Standards Act, which governs the payment of wages, would give rise to such an interest. See, e.g., Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1397–99 (4th Cir. 1990). In a similar vein, Chief Judge Briscoe’s dissent suggests that this opinion has “opened the floodgates to RFRA litigation challenging any number of federal statutes that govern corporate affairs.” Briscoe Op. at 25; see also Matheson Op. at 6 n.3. This argument similarly fails to acknowledge both RFRA’s allowance that a narrowly tailored compelling interest can justify a substantial burden and RFRA’s requirement that the belief be sincere. Cf. United States v. Quaintance, 608 F.3d 717 (10th Cir. 2010) (rejecting an argument that RFRA barred the prosecution of members of a marijuana distribution conspiracy who claimed that use of the drug was central to their religious beliefs).
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Establishment Clause challenge to a school voucher program where an overwhelming majority of the students were using vouchers to enroll at religious schools. 536 U.S. at 647. The Court concluded that such a programdid not violate the Establishment Clause in part because “the perceived endorsement of a religious message[] is reasonably attributable to the individual recipient, not to the government,” id. at 652, and in part because “no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement,” id. at 655 (emphasis added).
Southworth involved a similar claim brought by university students who challenged a mandatory fee that would be used in part to fund other student groups that produced speech the plaintiffs found objectionable. 529 U.S. at 230. The Court concluded that because funds for student activities were distributed to student groups on a viewpoint-neutral basis, this system prevented “any mistaken impression that the student [groups] speak for the University” or for the plaintiffs. Id. at 233 (internal quotation marks omitted).
The government attempts to analogize these Free Speech and Establishment Clause cases to the question here. The government suggests that because it was not possible to attribute the offensive speech to the students inSouthworth and
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the support for religious schools to the state in Zelman, it is also impossible to
attribute an employee’s independent choice to the employer.
We reject this position because it assumes that moral culpability for the
religious believer can extend no further than the government’s legal culpability in
the Establishment or Free Speech contexts. Again, Thomas teaches that the
plaintiff is not required to articulate a legal principle for the line he draws, let
alone point to an analog from potentially related fields of constitutional law. And
the question here is not whether the reasonable observer would consider the
plaintiffs complicit in an immoral act, but rather how the plaintiffs themselves
measure their degree of complicity.17
Hobby Lobby and Mardel have therefore established a substantial burden to
their sincerely held religious beliefs. We now turn to the final question: whether
the government has presented a compelling interest implemented through the least
restrictive means available.18
17 At oral argument, the government relied upon language from Doremus v. Bd. of Ed. of Borough of Hawthorne, 342 U.S. 429 (1952), a taxpayer standing case. The Supreme Court denied the taxpayer standing to bring the claims, reasoning in part that “the interests of a taxpayer in the moneys of the federal treasury are too indeterminable, remote, uncertain and indirect to furnish a basis for an appeal to the preventive powers of the Court over their manner of expenditure.” Id. at 433. Doremus does not apply here because Hobby Lobby and Mardel do not bring their claims as taxpayers but rather as entities alleging injury from coercive government regulation. Thus, the taxpayer standing concerns animating the court’s Doremus decision are not implicated here.
18 The district court relied on a test for substantial burden applied by the (continued...)
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C. Compelling Interest and Least Restrictive Means As noted above, even at the preliminary injunction stage, RFRA requires the government to demonstrate that mandating a plaintiff’s compliance with the contraceptive-coverage requirement is “the least restrictive means of advancing a compelling interest.” O Centro, 546 U.S. at 423 (citing 42 U.S.C. § 2000bb-1(b)). As the Supreme Court emphasized, this standard requires that we “look[] beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” Id. at 431. The interest must also be narrowly tailored. “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Id. at 430 (quoting 42 U.S.C. § 2000bb-1(b)) (emphasis added). Thus, the government must show with “particularity how [even] admittedly strong interest[s]” “would be adversely affected by granting [the] exemption” specifically requested by Hobby Lobby and Mardel. Wisconsin v. Yoder, 406 U.S. 205, 236 (1972).
18(...continued) Seventh Circuit in Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003). As the district court noted, the Seventh Circuit used Civil Liberties to change the test for what constitutes “inhibition” of religious practice by defining inhibition as any government act that “bears direct, primary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable.” Id. at 761. But Abdulhaseeb does not accept this formulation.
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1. Compelling Interest The government asserts two interests here: “the interests in [1] public health and [2] gender equality.” Aple. Br. at 34. We recognize the im portance of these interests. But they nonetheless in this context do not satisfy the Suprem e Court’s compelling interest standards. First, both interests as articulated by the government are insufficient under O Centro because they are “broadly formulated interests justifying the general applicability of government mandates.” 546 U.S. at 431. And the government offers almost no justification for not “granting specific exemptions to particular religious claimants.” Id. Second, the interest here cannot be compelling because the contraceptivecoverage requirement presently does not apply to tens of millions of people. As noted above, this exempted population includes those working for private employers with grandfathered plans, for employers with fewer than fifty employees, and, under a proposed rule, for colleges and universities run by religious institutions. As the Supreme Court has said, “a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547; see also O Centro, 546 U.S. at 433 (citing Lukumi as instructive in determining whether exemptions undermine a compelling government interest for purposes of RFRA). The exemptions at issue here would yield precisely this result: they would leave
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unprotected all women who work for exempted business entities. On this question, O Centro is particularly instructive. In that case, a
religious group sought an exemption for the sacramental use of hoasca, a hallucinogen classified as a Schedule I(c) controlled substance under the Controlled Substances Act. The question in O Centro was limited to whether the government could show a compelling governmental interest under RFRA to justify what was indisputably a substantial burden on the plaintiffs’ exercise of religion. The government in part relied on its interest in promoting public health and safety and upon Congress’s determination that hoasca “‘has a high potential for abuse,’ ‘has no currently accepted medical use,’ and has ‘a lack of accepted safety for use . . . under medical supervision.’” O Centro, 546 U.S. at 433 (quoting 21 U.S.C. § 812(b)(1)).
The Supreme Court refused to credit this argument, however, in part because the CSA and related regulations contained an exemption for the religious use of another substance categorized as a Schedule I hallucinogen, peyote. As the Court reasoned, “Everything the Government says about the [dangerous chemicals] in hoasca . . . applies in equal measure to the [dangerous chemicals] in peyote.” Id. Because both the Executive Branch and Congress had decreed a religious exemption for Native American use of peyote, the Court concluded that “it [was] difficult to see how” those same concerns could “preclude any consideration of a similar exception for” the religious use of hoasca. Id. If the
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peyote exemption in O Centro, which applied to “hundreds of thousands of Native Americans,” id., was enough to undermine the government’s compelling interest argument in that case, we conclude the exemption for the millions of individuals here must dictate a similar result.
2. Least Restrictive Means Even if the government had stated a compelling interest in public health or gender equality, it has not explained how those larger interests would be undermined by granting Hobby Lobby and Mardel their requested exemption. Hobby Lobby and Mardel ask only to be excused from covering four contraceptive methods out of twenty, not to be excused from covering contraception altogether. The government does not articulate why accommodating such a limited request fundamentally frustrates its goals.19
3. Hobby Lobby and Mardel Employees Finally, we note a concern raised both at oral argument and in the government’s briefing that Hobby Lobby and Mardel are, in effect, imposing their religious views on their employees or otherwise burdening their employees’ religious beliefs. But Hobby Lobby and Mardel do not prevent employees from using their own money to purchase the four contraceptives at issue here.
19 The government suggests on appeal that a limited number of women can only use the four contraceptives to which Hobby Lobby and Mardel object. The government did not raise this argument below nor has it provided any factual support for this claim. It is free to raise this argument below in permanent injunction proceedings.
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Of course, employees of Hobby Lobby and Mardel seeking any of these four contraceptive methods would face an economic burden not shared by employees of companies that cover all twenty methods. But the government must show why the employees’ burden creates a compelling interest that can only be met by requiring the corporations to conform to a mandate.
Accommodations for religion frequently operate by lifting a burden from the accommodated party and placing it elsewhere. The government itself has even taken this step with the contraceptive-coverage requirement by accommodating certain religious employers, at the expense of their employees. That is part of accommodating religion—and is RFRA’s basic purpose.
* * * In sum, for all of these reasons, Hobby Lobby and Mardel have established they are likely to succeed on their RFRA claim.
VI. Remaining Preliminary Injunction Factors20
Having concluded that Hobby Lobby and Mardel are likely to succeed on the merits, we turn to the remaining preliminary injunction factors: whether Hobby Lobby and Mardel face irreparable harm; whether the balance of equities tips in Hobby Lobby and Mardel’s favor; and whether an injunction is in the public interest. Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009). The district court did not analyze these factors (having disposed of
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the question on the likelihood-of-success prong) but Hobby Lobby and Mardel
nonetheless ask that we reach them.
A. Propriety of Reaching the Remaining Factors
“If the district court fails to analyze the factors necessary to justify a
preliminary injunction, this court may do so [in the first instance] if the record is
sufficiently developed.” Westar Energy, 552 F.3d at 1224. The record we have is
the record the parties chose to create below—it is the record they deemed
sufficient for the district court to decide the preliminary injunction question. For
each element, we believe this record suffices for us to resolve each of the
remaining preliminary injunction factors.21
In addition, “in First Amendment cases, the likelihood of success on the
merits will often be the determinative factor.” ACLU of Illinois v. Alvarez, 679
F.3d 583, 589 (7th Cir. 2012), cert. denied, 133 S. Ct. 651 (2012). That is
because:
21 In many First Amendment cases, courts of appeal have weighed these additional factors in the first instance after having determined that the district court had erroneously denied the preliminary injunction on the likelihood-ofsuccess element. See, e.g., Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 178 (3d Cir. 2002) (so holding in the context of a Free Exercise Claim ); Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (same in the context of Free Speech claim); ACLU of Illinois v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012) (same), cert. denied, 133 S. Ct. 651 (2012); see also Heideman v. S. Salt Lake City, 348 F.3d 1182, 1191 (10th Cir. 2003) (addressing—in the context of an affirmance of a denial of a preliminary injunction on a Free Exercise claim—all the preliminary injunction factors, even though the district court seemed to only address likelihood of success).
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! “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (internal quotation marks omitted);
! “when [a] law . . . is likely unconstitutional, the[]interests [of those the government represents, such as voters] do not outweigh [a plaintiff’s interest] in having [its] constitutional rights protected,” Awad v. Ziriax, 670 F.3d 1111, 1131–32 (10th Cir. 2012); and
! “it is always in the public interest to prevent the violation of a party’s constitutional rights,” id. at 1132.
This is likewise true here since RFRA is no ordinary statute: “Federal statutory law adopted after November 16, 1993 is subject to [RFRA] unless such law explicitly excludes such application by reference to this chapter.” 42 U.S.C. § 2000bb-3(b). Congress thus obligated itself to explicitly exempt later-enacted statutes from RFRA, which is conclusive evidence that RFRA trumps later federal statutes when RFRA has been violated. That is why our case law analogizes RFRA to a constitutional right. Kikumura, 242 F.3d at 963 (stating, in analyzing a RFRA claim, that “[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary” (emphasis added; internal quotation marks omitted)); see also Michael Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Mont. L. Rev. 249, 253 (1995) (characterizing RFRA as a “super-statute” given its binding nature on subsequent federal action). Congress did not exempt the ACA from RFRA, nor
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did it create any sort of wide-ranging exemption for HHS and other agencies charged with implementing the ACA through the regulations challenged here.
Finally, the government nowhere contested the factual adequacy or accuracy of Hobby Lobby and Mardel’s allegations, and given that those allegations were established through a verified complaint, they are deemed admitted for preliminary injunction purposes. IDS Life Ins. Co. v. SunAmerica Life Ins. Co., 136 F.3d 537, 542 (7th Cir. 1998) (noting that “[v]erified complaints[ are] the equivalent of affidavits”); 11A Charles Alan Wright et al., Fed. Prac. & Proc. § 2949 (2d ed., Apr. 2013 update) (“[T]he written evidence [in a preliminary injunction proceeding] is presumed true if it is not contradicted.”).
In short, the record before us is enough to resolve the remaining preliminary injunction factors. Given Hobby Lobby and Mardel’s July 1 deadline, prudence strongly counsels in favor of reaching those factors. Thus, we would reach them and find that they favor Hobby Lobby and Mardel. Indeed, as we discuss next, even if likelihood of success was not enough to settle the question, we would find in favor of Hobby Lobby and Mardel.
B. Analysis of Remaining Factors 1. Irreparable Harm
Hobby Lobby and Mardel have established a likely violation of RFRA. We have explicitly held—by analogy to First Amendment cases—that establishing a likely RFRA violation satisfies the irreparable harm factor. See Kikumura, 242
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F.3d at 963 (“a plaintiff satisfies the irreparable harmanalysis by alleging a violation of RFRA”); see also O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1187 (10th Cir. 2003) (same). Hobby Lobby and Mardel have therefore demonstrated irreparable harm.
2. Balance of Equities Nor is there any question about the balance of equities. A preliminary injunction would forestall the government’s ability to extend all twenty approved contraceptive methods to Hobby Lobby and Mardel’s 13,000 employees. But Hobby Lobby and Mardel will continue to provide sixteen of the twenty contraceptive methods, so the government’s interest is largely realized while coexisting with Hobby Lobby and Mardel’s religious objections. And in any event, the government has already exempted health plans covering millions of others. These plans need not provide any of the twenty contraceptive methods. By contrast, Hobby Lobby and Mardel remain subject to the Hobson’s choice between catastrophic fines or violating its religious beliefs. Accordingly, the balance of equities tips in Hobby Lobby and Mardel’s favor.
3. Public Interest Finally, as stated above, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Awad, 670 F.3d at 1132. Again, as already noted, although RFRA violations are not constitutional violations, Congress has given RFRA similar importance by subjecting all subsequent
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congressional enactments to a strict scrutiny standard of review unless those enactments explicitly exclude themselves from RFRA. See 42 U.S.C. § 2000bb3(b). And accommodating the two companies in this case does not undermine the application of the contraceptive-coverage requirement to the vast number of employers without religious objections. Because Hobby Lobby and Mardel have demonstrated a likely violation of their RFRA rights, an injunction would be in the public interest.
In sum, all preliminary injunction factors tip in favor of Hobby Lobby and Mardel, and we would therefore remand to the district court with instructions to enter a preliminary injunction.
VII. Conclusion
For the reasons set forth above, we reverse the district court’s denial of the plaintiffs’ motion for a preliminary injunction and remand with instructions that the district court address the remaining two preliminary injunction factors and then assess whether to grant or deny the plaintiffs’ motion. The Clerk is directed to issue the mandate forthwith.
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12-6294 - Hobby Lobby Stores, Inc., et al. v. Sebelius, et al. HARTZ, Circuit Judge, concurring:
I join Judge Tymkovich’s opinion but write separately to explain why I think (1) that all corporations come within the protection of the Free Exercise Clause and RFRA and (2) that the substantial-burden analysis here is a simple one. I. CORPORATIONS AS PERSONS
To analyze whether corporations have civil rights, one must begin by recognizing what they are. For our purposes, two characteristics are the most important. First, ordinarily they are a means of organizing group activity, for social or business reasons. Second, the personal liability of owners is limited, thereby encouraging investment in the enterprise. The sole aim of a corporation may be to maximize profit or long-term value to shareholders. But no law requires a strict focus on the bottom line, and it is not uncommon for corporate executives to insist that corporations can and should advance values beyond the balance sheet and income statement. See ALI Principles of Corporate Governance: Analysis and Recommendations § 2.01(b) (2012) (“Even if corporate profit and shareholder gain are not thereby enhanced, the corporation, in the conduct of its business: . . . (2) May take into account ethical considerations that are reasonably regarded as appropriate to the responsible conduct of business; and (3) May devote a reasonable amount of resources to public welfare, humanitarian, educational and philanthropic purposes.”) .

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Those who argue that a for-profit corporation does not have a right to the free exercise of religion point to three features of such an entity: (1) it is for profit, (2) it has adopted a corporate form, and (3) it is a group activity. It is unclear which of these features is thought to be the one that disqualifies corporations from the free-exercise right. In my view, however, none of these features can justify denial of rights protected under the First Amendment, including the right to free exercise of religion.
The first feature is the easiest to address because the Supreme Court has already recognized that profit-seekers have a right to the free exercise of religion. In Braunfeld v. Brown, 366 U.S. 599, 601 (1961), the Court entertained a free-exercise challenge to Sunday blue laws by Jewish merchants “engage[d] in the retail sale of clothing and home furnishings.” And in United States v. Lee, 455 U.S. 252, 254 (1982), an Amish farmer and carpenter was permitted to object on religious grounds to paying Social Security taxes for his employees. Perhaps profit-making is not a religious enterprise, but those who engage in profit-making enterprises can still have religious convictions that require them to do or refrain from doing certain things in their businesses. The Constitution does not require compartmentalization of the psyche, saying that one’s religious persona can participate only in nonprofit activities. As Justice Brennan wrote, “[A] State may [not] put an individual to a choice between his business and his religion.” Braunfeld, 366 U.S. at 611 (Brennan, J., dissenting).
Also, there is no principled reason why an individual who uses the corporate form in a business must thereby sacrifice the right to the free exercise of religion. Rabbi
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Manischewitz starts a business preparing kosher matzo. A city ordinance prohibits certain kosher practices. No one could doubt that he can challenge the ordinance under the Free Exercise Clause or RFRA. But, some say, he can no longer raise such a challenge if he decides to limit his personal liability arising from the business by converting it to a sole-shareholder corporation. Why? True, the government may impose special duties on those who use a corporate form, such as a duty to produce corporate records, and those duties may require limitations on constitutional rights. See Wilson v. United States, 221 U.S. 361, 383–85 (1911) (no Fifth Amendment privilege to refuse to produce corporate records). But surely the limitations must relate to use of the corporate form. Does it make sense to say, “Since you have acted to reduce your personal financial risk, you can now be required to stop making kosher matzo.”? What does limiting financial risk have to do with choosing to live a religious life? Although a corporation takes on a legal identity distinct from the sole shareholder, First Amendment jurisprudence is based on the substance of the constitutional protections, not matters of form. See Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 667, 679–80 (1996) (citing cases); Bd. of Educ. v. Grumet, 512 U.S. 687, 698 (1994) (plurality opinion) (“In the circumstances of these cases, the difference between thus vesting state power in the members of a religious group as such instead of the officers of its sectarian organization is one of form, not substance.”). Indeed, as Judge Tymkovich’s opinion recites, use of the corporate form has not disqualified nonprofit corporations from invoking the protections of the Free Exercise Clause and RFRA. And for-profit corporations have been protected
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by rights to freedom of speech and freedom of the press. See, e.g., Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991); New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
What about the group-activity feature of corporations? No one suggests that organizations, in contrast to their members, have souls. But it does not follow that people must sacrifice their souls to engage in group activities through an organization. Working with others through an organization can often be advantageous in many respects. Of course, one who acts through a group loses a measure of personal autonomy and privacy. The group may say something that is anathema to one of its members or do something contrary to the religious faith of a member. Thus, the civil liberties of an organization— say, to exercise religion or to speak—must be considered distinct from the civil liberties of any particular member. Its speech or conduct may reflect the view of only a bare majority of the members, or even just the view of the members’ delegate—such as the editor of a newspaper or the pastor of a congregation. It suffices that the speech or conduct represents an “official position.” See Boy Scouts of Am. v. Dale, 530 U.S. 640, 655 (2000) (“[T]he First Amendment simply does not require that every member of a group agree on every issue in order for the group’s policy to be ‘expressive association.’ The Boy Scouts takes an official position . . . and that is sufficient for First Amendment purposes.”) But the advantages of acting through an organization may still be attractive to the individual. One who wants to have a prosperous business, but a business that still does nothing contrary to one’s faith, can reasonably decide that the best way to
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accomplish this is to join with like-minded persons, perhaps as partners, perhaps as fellow shareholders. Is that desire to be thwarted because the government can require the organization to engage in sins that could not be required of any of the members individually? Rabbi Manischewitz need not comply with an ordinance prohibiting the baking of kosher matzo, but when he obtains investors and the business is incorporated as Manischewitz, Inc., the anti–kosher law can be enforced against it? Must he reorganize the business as a sole proprietorship to continue to make and sell kosher matzo?1
As noted in Judge Tymkovich’s opinion, the Supreme Court has recognized that civil liberties are preserved for those who work through groups. “An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984); cf. Grumet, 512 U.S. at 698 (“religious people (or groups of religious people) cannot be denied the opportunity to exercise the rights of citizens simply because of their religious affiliations or commitments, for such a disability would violate the right to religious free exercise”
1 Judge Matheson suggests that it is not necessary for the corporation to have a RFRA claim because the rabbi himself could raise a claim as an individual. See Matheson Op. at 20–21 n.15. But I do not share his confidence that a shareholder, director, or officer can have a personal free-exercise claim (under the First Amendment or RFRA) to challenge a law that commands only the corporation.
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(emphasis added)).2 There is no reason why that group should lose constitutional protection if it is organized in corporate form. Cf. United States v. Int’l Union UAW-CIO, 352 U.S. 568, 597 (1957) (Douglas, J., dissenting, joined by C. J. Warren and J. Black) (“Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group—labor or corporate.”).
Perhaps in certain circumstances the use of the corporate form can be a proper ground for limiting (but not eliminating) First Amendment rights. The reasons argued for restricting political expenditures by corporations include the asserted inclinations and advantages of corporations in corrupting officeholders. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 447–75 (Stevens, J., dissenting). But no such concern has been raised here, and I fail to see how such a concern could arise. A corporation exercising religious beliefs is not corrupting anyone. Nor do I see how it would have any special inclination or advantage in exercising religious beliefs to the public detriment.
In short, those arguing that for-profit corporations cannot be “persons” under RFRA can find no support in any principles established in Supreme Court First
2 To be entitled to First Amendment protection, the group’s speech or conduct need not be the purpose for forming the group. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 655 (2000) (“[A]ssociations do not have to associate for the ‘purpose’ of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired to be entitled to protection.”).
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Amendment jurisprudence. They must resort to pointing out that the Supreme Court has never ruled that a for-profit corporation has a right to the free exercise of religion. But neither has it ruled to the contrary. The fact of the matter is that it has never had to decide the issue. Interestingly, the issue was raised by the government in Gallagher v. Crown Kosher Super Market of Massachusetts, Inc., 366 U.S. 617 (1961), one of the associated cases challenging Sunday blue laws on various grounds. Because the Court had already rejected the free-exercise claim in another decision, it said that it did not have to decide whether the corporation, its customers, or the rabbis who supervised the condition of kosher meat had standing to bring a free-exercise challenge. See id. at 631. But the three dissenters, Justices Douglas, Brennan, and Stewart, implicitly found standing.
Of course, a corporation is protected only in its sincere religious beliefs. Chief Judge Briscoe’s opinion expresses concern about “how easily an ‘exercise of religion’ could now be asserted by a corporation to avoid or take advantage of any governmental rule or requirement.” Briscoe Op. at 4. This is certainly a proper concern, just as courts can properly be concerned about the sincerity of prisoners who convert to Judaism and demand kosher meals. But sincerity questions with respect to corporations should not be unmanageable. It should not be hard to determine who has authority to speak or act for the corporation. And sincerity can be measured by consistency of the present stated belief with the history of the enterprise. Unlike prisoners, for example, corporations are not known to have epiphanies or sudden conversions.
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Insofar as Chief Judge Briscoe’s opinion is concerned about “open[ing] the
floodgates to RFRA litigation challenging any number of federal statutes that govern
corporate affairs,” id. at 25, it does not explain why that danger is any greater than the
possibility of litigation on behalf of sole proprietors, or perhaps partnerships and other
business organizations. But in any event, it makes no sense under RFRA to refuse to
grant a merited exemption just because others may also seek it. How ironic if a burden on
religious objectors can be justified because “too many” objectors find a law repugnant.
The fears expressed are reminiscent of what the Supreme Court wrote almost a quarter-
century ago:
The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is compelling— permitting him, by virtue of his beliefs, to become a law unto himself, contradicts both constitutional tradition and common sense. . . . Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.
Emp’t Div. v. Smith, 494 U.S. 872, 885, 888 (1990) (citations and internal quotation
marks omitted). Accordingly, the Court held that a “neutral law of general applicability”
cannot be challenged on free-exercise grounds. Id. at 879; see id. at 888–89 (listing civic
obligations, such as paying taxes and minimum wages, that could otherwise be subject to
“constitutionally required” exemptions). That view, of course, was soundly rejected
when Congress enacted RFRA.
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II. SUBSTANTIAL BURDEN I would also add a few words on the meaning of “substantial burden.” It is
important to distinguish between two types of laws that may violate the right to free exercise of religion. Some laws require a person to do something contrary to the person’s religious beliefs or to refrain from doing something required by those beliefs. Other laws do not order the violation of a religious duty but simply make it more difficult for a person to obey that duty. As I understand Supreme Court precedent, the first type of law imposes a substantial burden on free exercise, whatever the penalty imposed for violating the law. Measuring coercive impact to determine whether the law imposes a “substantial” burden is necessary only for the second type of law. For example, in Lee the law required the Amish businessman to pay social security taxes, which his faith prohibited him from doing. The substantial-burden discussion in Lee is short and sweet: “Because the payment of the taxes or receipt of benefits violates Amish religious beliefs, compulsory participation in the social security system interferes with their free exercise rights.” 455 U.S. at 257. And in Thomas, which required the payment of unemployment benefits to a worker who was fired for refusing to engage in work contrary to his religious beliefs, the Court turned to an analysis of the burden on the worker only after noting that “the Indiana [unemployment-compensation] law does not compel a violation of conscience.” 450 U.S. at 717. Later cases that examined whether there was a substantial burden similarly pointed out that compliance with the law would not itself violate the person’s religious views. See Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 391 (“There
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is no evidence in this case that collection and payment of the tax violates appellant’s sincere religious beliefs.”); Hernandez v. Comm’r, 490 U.S. 680, 699 (“Neither the payment nor the receipt of taxes is forbidden by the Scientology faith generally, and Scientology does not proscribe the payment of taxes in connection with auditing or training sessions specifically.”). The law we address today compels the corporations to act contrary to their religious beliefs. They therefore suffer a substantial burden. I see no need to examine how damaging the sanctions for noncompliance would be or how difficult it would be for the corporations to rearrange their present manner of operating their businesses to avoid violating the law.
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12-6294, Hobby Lobby Stores, Inc., et al. v. Sebelius, et al. GORSUCH, joined by KELLY and TYMKOVICH, Circuit Judges, concurring.
Judge Tymkovich explains why Hobby Lobby and Mardel are entitled to a preliminary injunction. I write to explain why the Greens themselves, as individuals, are also entitled to relief and why the Anti-Injunction Act does not preclude us from supplying that relief.
* * * All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Green family members are among those who seek guidance from their faith on these questions. Understanding that is the key to understanding this case. As the Greens explain their complaint, the ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong. No one before us disputes that the mandate compels Hobby Lobby and Mardel to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg. No one disputes that the Greens’ religion teaches them that the use

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of such drugs or devices is gravely wrong.1 It is no less clear from the Greens’
uncontested allegations that Hobby Lobby and Mardel cannot comply with the
mandate unless and until the Greens direct them to do so — that they are the
human actors who must compel the corporations to comply with the mandate.
And it is this fact, the Greens contend, that poses their problem. As they
understand it, ordering their companies to provide insurance coverage for drugs or
devices whose use is inconsistent with their faith itself violates their faith,
representing a degree of complicity their religion disallows. In light of the
crippling penalties the mandate imposes for failing to comply with its dictates —
running as high as $475 million per year — the Greens contend they confront no
less than a choice between exercising their faith or saving their business.
No doubt, the Greens’ religious convictions are contestable. Some may
even find the Greens’ beliefs offensive. But no one disputes that they are
sincerely held religious beliefs. This isn’t the case, say, of a wily businessm an
1 See Gov’t Br. at 9 n.6 (acknowledging that some of the drugs referenced in the ACA mandate can “inhibit[] implantation”); Plaintiffs’ Complaint ¶ 95 (suggesting same and citing an FDA publication). The dissent takes issue with the government’s concession and asserts that the drugs referenced in the ACA mandate do not have the effect of preventing the implantation of a fertilized egg. See Briscoe Op. at 3, 31. But the dissent also acknowledges that the devices referenced in the mandate do have this effect. Id. at 3. Given this, there is no dispute from any quarter that the ACA forces Hobby Lobby and Mardel to underwrite something (be it drug or device) that offends the Greens’ religious beliefs, and of course the only relief the corporations or Greens seek is relief sufficient to protect those beliefs. See Tymkovich Op. at 13 n.3.
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seeking to use an insincere claim of faith as cover to avoid a financially burdensome regulation. See United States v. Quaintance, 608 F.3d 717 (10th Cir. 2010) (an example of just that). And to know this much is to know the terms of the Religious Freedom Restoration Act apply. The Act doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.
The Greens’ claim in this case closely parallels claims the Supreme Court vindicated in Thomas and Lee. In Thomas, the plaintiff, a faithful Jehovah’s Witness, was willing to participate in manufacturing sheet steel he knew might find its way into armaments, but he was unwilling to work on a fabrication line producing tank turrets. Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 711 (1980). That’s the line he understood his faith to draw when it came to complicity in war-making, an activity itself forbidden by his faith. The Supreme Court acknowledged this line surely wasn’t the same many others would draw, and that it wasn’t even necessarily the same line other adherents to the plaintiff’s own faith might always draw. But the Court proceeded to hold that it was not, is not, the place of courts of law to question the correctness or the consistency of tenets of religious faith, only to protect the exercise of faith. Id. at 714-16. No different result can reasonably follow here.
In Lee, a devout Amish employer refused to pay social security taxes on
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behalf of his employees. See United States v. Lee, 455 U.S. 252, 254-55 (1982). The employer’s faith taught that it is sinful to accept governmental assistance. By being forced to pay social security taxes on behalf of his employees, the employer argued, he was being forced to create for his employees the possibility of accepting governmental assistance later. This much involvement or complicity, the employer argued, was itself sinful under the teachings of his religion. The government argued there — much as the government argues here — that the enforcement of its mandate on the employer would “not threaten the integrity of the [employer’s] religious belief” because the employer didn’t have to accept social security benefits himself and his employees could choose for themselves whether to do so. See Lee, 455 U.S. at 257; Brief for Gov’t, Lee (No. 80-767), 1981 WL 389829 at *10 (June 5, 1981). The Supreme Court squarely rejected this argument in language no less applicable to our case, explaining that it is not within “the judicial function and competence . . . to determine whether the Government has the proper interpretation of the Amish faith.” 455 U.S. at 257.
The district court reached a different result only because it mistook the nature of the Greens’ objection. As the district court described it, “the particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by Hobby Lobby’s plan, subsidizesomeone
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else’s participation in an activity that is condemned by plaintiff’s religion.”
Order at 23 (Nov. 19, 2012), ECF No. 45 (emphasis added). The dissent
proceeds along the same lines today, asserting that the Greens have no claim
because they do not “become a party to, or otherwise encourage, an individual
employee’s decision to use a particular drug or device.” Briscoe Op. at 34. All
this, however, mistakes or rewrites the Greens’ sincerely held religious
convictions. As the Greens describe it, it is theirpersonal involvement in
facilitating access to devices and drugs that can have the effect of destroying a
fertilized human egg that their religious faith holds impermissible. And as we
have seen, it is not for secular courts to rewrite the religious complaint of a
faithful adherent, or to decide whether a religious teaching about complicity
imposes “too much” moral disapproval on those only “indirectly” assisting
wrongful conduct. Whether an act of complicity is or isn’t “too attenuated” from
the underlying wrong is sometimes itself a matter of faith we must respect. Thomas and Lee teach no less.2
2 The primary authority the dissent relies on for its reading of the Greens’ religious objection turns out to be another circuit dissent that itself fails to account for Thomas or Lee. See Grote v. Sebelius, 708 F.3d 850, 856-57 (7th Cir. 2013) (Rovner, J., dissenting). The only other authority the dissent relies on has nothing to do with RFRA, let alone the degree to which we must defer to a sincerely held religious belief about complicity. It concerns instead the degree of assistance the government (not a religious person) may afford religious activities before running afoul of the Constitution’s Establishment Clause (not an article of religious faith). See Briscoe Op. at 34 (citing Zelman v. Simmons-Harris, 536
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With that much in mind, it is beyond question that the Greens have Article III standing to pursue their claims individually. This is so not simply because the company shares of which they are the beneficial owners would decline in value if the mandate’s penalties for non-compliance were enforced, though that alone would satisfy Article III. See Franchise Tax Bd. of Cal. v. Alcan Aluminium Ltd., 493 U.S. 331, 336 (1990); Grubbs v. Bailes, 445 F.3d 1275, 1280 (10th Cir. 2006). It is also because the mandate infringes the Greens’ religious liberties by requiring them to lend what their religion teaches to be an impermissible degree of assistance to the commission of what their religion teaches to be a moral wrong. This sort of governmental pressure to compromise an article of religious faith is surely sufficient to convey Article III standing to the Greens, as it was for the plaintiffs in Thomas and Lee and in so many other religious liberty cases. Certainly our sister circuits have had no trouble finding Article III standing in similar cases where, say, individual pharmacists sought to contest regulations requiring their employers to dispense some of the same drugs or devices challenged here, see Stormans, Inc. v. Selecky, 586 F.3d 1109, 1121 (9th Cir. 2009), or where individual soldiers sought to challenge military rules prohibiting their on-base day-care providers from including religious practices in their programs, see Hartmann v. Stone, 68 F.3d 973, 979 n.4 (6th Cir. 1995). Indeed, I
2(...continued) U.S. 639, 652 (2002)).
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do not understand the government or any of my colleagues to dispute the Greens’ Article III standing.3
But what of prudential standing doctrines, and perhaps most especially the shareholder standing rule? Prudential standing doctrines are not jurisdictional: they may be forfeited or waived. Finstuen v. Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007). In this case, the government did not raise prudential standing as a defense in the district court; the district court did not raise the issue for itself but proceeded to address the Greens’ claim on the merits; and the government did not mention any prudential standing concern in its principal brief to this court. To be sure, the government finally took up that cudgel when we asked for supplemental briefing on the issue. But even then it left critical questions unaddressed.
Take this one. Under the plain text of RFRA, standing is “governed by the general rules of standing under article III.” 42 U.S.C. § 2000bb-1(c) (emphasis added). Congress’s directive seems clear on its face — the text expressly tells us to apply the rules of standing under Article III and makes no mention of
3 The dissent emphasizes the fact that the Greens are the beneficial owners of Hobby Lobby and Mardel through trusts rather than the corporation’s direct owners, see Briscoe Op. at 32, but I do not take this discussion as going so far as to suggest the Greens lack Article III standing. See generally Gollust v. Mendell, 501 U.S. 115, 125-27 (1991) (indirect ownership of one corporation through another found sufficient for standing under federal securities laws); Fed. R. Civ. P. 17(a)(1)(E) (allowing a trustee to sue in her own name on behalf of a trust).
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prudential (non-Article III) standing rules. In this way, the plain language seems to suggest prudential standing doctrine failed to make its way into RFRA. The government never confronts this possibility, let alone suggests the statute’s language is fairly susceptible to an alternative reading that might suffice to suggest an ambiguity about its meaning. In fact, the government’s supplemental brief on prudential standing doesn’t even cite RFRA’s text.
That’s not all. Judicially importing prudential standing doctrine into RFRA would appear not only to defy the statute’s plain text, it would also appear to run the risk of rendering the text surplusage. After all, Congress could hardly suspend Article III standing rules even if it wished to do so, and Congress had no need to speak if it wished to leave existing prudential rules in place. See Bennett v. Spear, 520 U.S. 154, 163 (1997) (Congress “legislates against the background of . . . prudential standing doctrine, which applies unless it is expressly negated”). So if Congress’s directive in § 2000bb-1(c) cannot curb the operation of constitutional standing rules, and if Congress’s directive is not needed to perpetuate prudential standing rules, what work is left for it to accomplish? The most obvious candidate is to rule out the use ofprudential standing restrictions and, as we’ve seen, the text is certainly sufficient to that task. Again, however, the government fails to consider, let alone refute, this complication.
To be sure, at oral argument the government finally directed us to Jackson v. Dist. of Columbia, 254 F.3d 262 (D.C. Cir. 2001), and suggested that case
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endorsed the use of prudential standing doctrine in RFRA cases. But it turns out that Jackson discussed only the interaction of exhaustion (not standing) doctrine and RFRA. See id. at 266-67. Moreover, when Jackson briefly mentioned standing in the course of addressing the plaintiffs’ exhaustion argument, it proceeded to consult the legislative history without first identifying an ambiguity in the text, as it was obliged to do. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) (“We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” (citations and internal quotation marks omitted)).
At the end of the day, then, and even after inviting supplemental briefing, we are left with almost no help from the government on the critical question of the statutory text’s receptivity to prudential standing doctrine. Without that assistance, without as well some meaningful adversarial engagement on the question, we run a serious risk of reaching “an improvident or ill-advised opinion,” not to mention causing unfairness to the individual plaintiffs who cannot now respond to the government’s eleventh-hour oral argument reference to Jackson. See Hill v. Kemp, 478 F.3d 1236, 1250-51 (10th Cir. 2007) (citing Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir. 1994) (White, J.)). Applying our normal forfeiture rules in these circumstances is both more
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prudent and more just. We should bypass questions of prudential standing and reach the merits of the Greens’ claims, just as the district court did and both parties have.
That said, even if we were to entertain prudential standing questions at this late stage and assume the doctrine applies to RFRA despite the gaping questions the government left unaddressed, it’s far from clear the doctrine bars the Greens’ claim on its own terms. The government points us in the general direction of the shareholder standing rule, a feature of prudential standing doctrine barring corporate owners from asserting claims belonging to the corporation. See Alcan, 493 U.S. at 336. But that prudential rule does not bar corporate owners from bringing suit if they have “a direct, personal interest in a cause of action . . . even if the corporation’s rights are also implicated.” Id. And in our case the Greens contend that they, as the controlling owners and operators of Hobby Lobby and Mardel, are the human beings who must direct the corporations to comply with the mandate and do so in defiance of their faith. They contend the ACA prevents them as individuals from owning and managing a corporation of the size of Hobby Lobby and Mardel — from practicing their traditional trade — without violating their religious beliefs. That much would seem to qualify as a quintessentially “direct” and “personal” interest protected even under the shareholder standing rule. See Heart of Am. Grain Inspection Serv., Inc. v. Missouri Dep’t of Agriculture, 123 F.3d 1098, 1102 (8th Cir. 1987) (both
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employee grain inspectors and their corporate employer had standing to sue to enjoin law preventing employer from weighing grain because not only would the corporation be injured but the inspectors themselves would be “prevented from practicing their trade by virtue of the state’s actions”) (emphasis added)); Grubbs, 445 F.3d at 1280. On this score, we find ourselves in full agreement with Judge Matheson.4
Turning finally to the merits, they are by this point clear enough. Unlike Hobby Lobby and Mardel, there can be no colorable question that the Greens are “persons” entitled to RFRA’s protections. Neither can there be any colorable question that the Greens face a “substantial burden” on their “exercise of religion.” This statutory threshold is met when, among other things, the government presents a plaintiff with a “Hobson’s choice — an illusory choice where the only realistically possible course of action trenches on an adherent’s sincerely held religious belief.” Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010). As we have already seen, the Greens face precisely that — a choice between abiding their religion or saving their business. With respect to
4 Whether other individuals with lesser claims to involvement in a company or effecting a governmental mandate could lay claim to such a direct and personal interest is, no doubt, an important question, but it is one for a different case with different facts, not the one we confront today. Ours sim ply is not the case of “managers” seeking standing, see Briscoe Op. at 34, it is one involving individuals who are the beneficial owners, as well as the directors and officers, of privately held companies.
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the remaining statutory and equitable factors, Judge Tymkovich shows why they all favor granting rather than withholding the requested relief, and none of that discussion warrants repetition here. Here it is enough to observe simply that the Greens, no less than Hobby Lobby and Mardel, merit the court’s protection while this case proceeds.
In many ways this case is the tale of two statutes. The ACA compels the Greens to act. RFRA says they need not. We are asked to decide which legislative direction controls. The tie-breaker is found notin our own opinions about good policy but in the laws Congress enacted. Congress structured RFRA to override other legal mandates, including its own statutes, if and when they encroach on religious liberty. When construing any “federal statutory law adopted after November 16, 1993,” Congress told us in no uncertain terms we should deem it “subject to [RFRA] unless such law explicitly excludes such application.” See 42 U.S.C. § 2000bb-3(b). In this way, RFRA is indeed something of a “super-statute.” Michael Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Mont. L. Rev. 249, 253 (1995). And because the government identifies no explicit exclusion in the ACA to its dictates, it is RFRA’s legislative direction that must prevail in the end. Indeed, though our opinions today may be many and the routes we follow various, no fewer than six of us agree that the district court’s holding failed to give sufficient attention to RFRA’s powerful voice.
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* * * We could not, of course, reach the merits of the RFRA question if we thought the Anti-Injunction Act barred our way. The AIA precludes our consideration of suits seeking to “restrain the assessment or collection of any [federal] tax.” 26 U.S.C. § 7421(a). Though they agree on little else, both sides before us insist this lawsuit doesn’t meet that description. But a non-trivial argument could be made that they are all wrong: the plaintiffs, after all, seek to restrain the government’s use of any of the ACA’s enforcement mechanisms, including one that is expressly labeled a “tax.” See 26 U.S.C. § 4980D(a). And Congress’s decision to label something a tax usually is enough for it to trigger the AIA, “even where that label [is] inaccurate.” See NFIB v. Sebelius, 132 S. Ct. 2566, 2583 (2012). I write to emphasize that, even if the parties are wrong and the AIA does apply to this case, it still wouldn’t allow us to avoid reaching the merits. It wouldn’t because the government has expressly waived any reliance on the AIA: not only did it fail to raise the AIA as a defense in the district court, it discouraged us from applying the statute when we invited additional briefing on the matter. So long as the AIA affords the government only a waivable defense — so long as it doesn’t impose on the courts a jurisdictional limit on our statutory authority to entertain this case — we are bound to reach the merits. And a waivable defense, we are persuaded, is all the AIA provides.
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The Supreme Court has cautioned that “[j]urisdiction . . . is a word of many, too many, meanings.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (internal quotation marks omitted). As a result, the Court has instructed us against relying on “drive-by jurisdictional rulings” that do not properly grapple with the distinctions between procedural requirements, claim elements, and bona fide jurisdictional limits on a court’s power. See Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010); Arbaugh v. Y&H Corp., 546 U.S. 500, 510-11 (2006); Steel Co., 523 U.S. at 91. To rein in courts’ “profligate use of the term jurisdiction,” the Supreme Court has recently adopted “a readily administrable bright line for determining whether to classify a statutory limitation as jurisdictional.” Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 824 (2013) (alterations omitted) (internal quotation marks omitted). That rule requires us to “inquire whether Congress has clearly stated that the rule is jurisdictional; absent such a clear statement . . . courts should treat the restriction as nonjurisdictional in character.” Id.; see also Gonzalez v. Thaler, 132 S. Ct. 641, 648-49 (2012); Arbaugh, 546 U.S. at 515–16. Statutes that speak clearly to “the courts’ statutory or constitutional power to adjudicate the case” must of course be treated as jurisdictional and given their full effect. Steel Co., 523 U.S. at 89 (emphasis in original). But statutes that speak to the rights or obligations of parties to a lawsuit establish “claim-processing rules,” are not and should not be treated as “jurisdictional prescriptions.” Reed Elsevier, 559 U.S. at 161. In addition to the
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consulting statutory text, we may when necessary consider as well “context, including [the Supreme] Court’s interpretation of similar provisions in many years past.” Id. at 168.
When it comes to the AIA, all of these considerations point in the same direction.
First and most importantly, the AIA’s text dictates merely that “[e]xcept as provided in [other provisions inapplicable here] no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” 26 U.S.C. § 7421(a). Similar to other claims processing rules, the statute does not apply its prohibition to thecourt (let alone more specifically to the court’s power or jurisdiction) but applies its prohibition instead to a person. Indeed, the AIA’s language is nearly identical to the language of the copyright statute analyzed in Reed Elsevier — and we know with certainty that language “says nothing about whether a federal court has subject-matter jurisdiction.” 559 U.S. at 1664. Compare 26 U.S.C. § 7421(a) (AIA: “no suit . . . shall be maintained”), with 17 U.S.C. § 411(a) (copyright statute: “no civil action . . . shall be instituted”).
Second, the AIA does not even appear in the same title of the Code as most statutes bearing on federal courts’ jurisdiction. See 28 U.S.C. § 1330 et seq. Instead, Congress chose to place the AIA in Title 26, in a chapter of the tax code discussing claims processing rules in proceedings brought by “Taxpayers and
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Third Parties.” On at least two occasions, the Supreme Court has found Congress’s decision to locate a statute “separate” from jurisdictional provisions suggestive contextual evidence that the statute in question was non-jurisdictional. See Reed Elsevier, 559 U.S. at 164-65; Arbaugh, 546 U.S. at 514. Precisely the same sort of suggestive contextual evidence exists here.
Third, in both of these respects (in both its language and placement) the AIA contrasts sharply with its cousin, the Tax Injunction Act (TIA), a provision controlling federal jurisdiction over suits seeking to enjoin state rather than federal tax collection. The TIA speaks directly to courts rather than to the parties. See 28 U.S.C. § 1341 (“The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law . . . .” (emphasis added)). And the TIA is located within the same chapter of the same title of the U.S. Code as the other principal statutes governing federal jurisdiction. See id. Facts like these suggest Congress could have easily made the AIA jurisdictional if it wished and that it “would have spoken in clearer terms [in the AIA] if it intended” to do so. Gonzalez, 132 S. Ct. at 649. Neither is it insensible to think Congress might wish to protect state taxes even more than its own from federal lawsuits: comity and federalism concerns lurk there, while federal taxes and the lower federal courts are equally creations of Congress itself.
Finally, there is the Supreme Court’s treatment of the AIA in past cases. It is settled that the courts have “no authority to create equitable exceptions to
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jurisdictional requirements.” Bowles v. Russell, 551 U.S. 205, 214 (2007). Yet the Supreme Court has repeatedly recognized equitable exceptions to the AIA’s application. See, e.g., Bob Jones Univ. v. Simon, 416 U.S. 725, 742-46 (1974); Enochs v. Williams Packing, 370 U.S. 1, 7 (1962). In fact, the Supreme Court has expressly indicated that the predecessor to the AIA — containing substantially the same language — is non-jurisdictional, going so far as to allow the Solicitor General to proffer a “waiver of a defense” so the Court could reach the merits of the case before it. See Helvering v. Davis, 301 U.S. 619, 639 (1937) (discussing Rev. Stat. § 3224). All of these results would seemimpossible if the AIA really were jurisdictional. Admittedly, both the Supreme Court and this court have on other occasions referred to the statute as jurisdictional. See, e.g., Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 5 (1962); Sterling Consulting Corp. v. United States, 245 F.3d 1161, 1167 (10th Cir. 2001). But these cases employ the jurisdictional label with little or no analysis — amounting to exactly the sort of “drive-by jurisdictional rulings” the Court tells us to view with a jaundiced eye. And more recently the Supreme Court has approached the AIA much more gingerly, taking care to avoid the jurisdictional epithet. See NFIB v. Sebelius, 132 S. Ct. 2566, 2582 (2012) (holding that the AIA didn’t apply in that case by its own terms).
In the end, the AIA shows none of the hallmarks of a jurisdictional restriction, and has many features that collectively indicate otherwise. The
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government can waive its application, and it has done so before us. Given that, we can be sure, perhaps doubly sure, that reaching the merits of this case is appropriate and indeed our duty.
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12-6294, Hobby Lobby Stores, Inc., et al. v. Sebelius, et al. BACHARACH, J., concurring.
I join Parts I, II, III, IV, V, and VI(B)(1) of Judge Tymkovich’s thorough, finely-crafted opinion. Like Judge Tymkovich, I believe that Hobby Lobby Stores, Inc. and Mardel, Inc. are “persons” under the Religious Freedom Restoration Act. I write separately to:
! discuss the need for a remand so that the district court can address the balancing elements of the preliminaryinjunction inquiry and
! address prudential standing and conclude that we should instruct the district court to dismiss the Greens’ claims.
I. The Need for Remand to the District Court on the Balancing Elements I respectfully decline to join Parts VI(A), (B)(2), and (B)(3) of the plurality
opinion because I believe that the required balancing of interests should be conducted by the district court rather than the court of appeals. Because we convene as an appellate tribunal, rather than a front-line court of equity, our only function is to determine whether the district court committed legal error.
The district court did err, as the plurality concludes, by holding that Hobby Lobby and Mardel are unlikely to succeed on the merits. Still, Hobby Lobby and Mardel can obtain a preliminary injunction only if they persuade a court of three additional elements: (1) irreparable injury; (2) avoidance of injury to the public interest; and (3) greater injury to themselves, if a preliminary injunction were to be denied, than to the defendants if a preliminary injunction were to be granted.

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See Plurality Op., Part VI; see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (identifying the equitable elements for a preliminary injunction). These elements have not been addressed by the district court.
I agree with the plurality that Hobby Lobby and Mardel have demonstrated irreparable injury, for the government argued in the district court that the elements involving irreparable injury and likelihood of success had merged.
The remaining issue is whether the district court should be allowed to engage in the balancing required by the other two elements or whether, as the plurality proposes, we should undertake that task ourselves. Unlike the plurality, I think the equitable balancing should be performed by the district court.
As the Supreme Court has recognized, “the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 394 (2006). Thus, when a district court has not addressed one or both of the balancing elements because of a legal error involving some other part of the inquiry, the general practice is to remand the case to the district court for initial consideration of the public interest and balancing of the potential harm to the parties.1 Our court ordinarily follows
1 See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 394 (2006) (vacating the decision of the court of appeals and ordering a remand so that the district court could address the equitable elements of a preliminary injunction); Acumed LLC v. Stryker Corp., 483 F.3d 800, 811 (Fed. Cir. 2007) (remanding a case to the district court and explaining that “[i]f we were to weigh the evidence ourselves to reach a conclusion on injunctive relief, we would effectively be
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this practice. See Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (remanding for consideration of the public interest and balancing of interests because the district court had not discussed them).
The reasons for this practice are sound. As the Seventh Circuit Court of Appeals observed, the “cold record” before the appellate court may not reflect the district judge’s sense of the equities. Lawson Prods., Inc. v. Avnet, Inc., 782 F.3d 1429, 1437-38 (7th Cir. 1986). Thus, it is hard to imagine why an appellate tribunal would be better than the district court at balancing the relevant interests. Id.
Now that we have decided the issues of likelihood of success on the merits and irreparable harm, a court must weigh the competing equities, such as the public interest in ensuring access to emergency contraceptives and the interests of Hobby Lobby and Mardel in exercising their religious beliefs. In my view, this weighing process is more properly suited to the institutional expertise and function of the district court.
In its own weighing of interests, the plurality does not mention the public interest that the government had relied on at the preliminary-injunction hearing:
1(...continued) exercising our own discretion as if we were the first-line court of equity,” a role belonging “exclusively to the district court”); Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437-38 (7th Cir. 1986) (remanding to the district court for consideration of the equitable elements of a preliminary injunction because “the appellate process is not well suited to an appreciation of the subtle shadings of a case” involved in the balancing of equities).
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the health reasons for promoting employee access to emergency contraceptives. JA 158a. A court of equity might ultimately decide that this interest is outweighed by the public interest in extending RFRA protection to Hobby Lobby and Mardel. But whichever court does the balancing must at least consider the government’s stated interest and weigh it against the public interest in religious freedom.
As Judge Tymkovich notes, we have occasionally balanced the equities in the first instance when “the record is sufficiently developed to allow for an analysis of the equitable factors on appeal.” Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009); see Plurality Op., Parts IV, VI. But here, the record does not contain any evidence. Thus, I do not believe the record was sufficiently developed for us to do the balancing in the first instance.
The plurality suggests that balancing of statutory public interests is unnecessary because: (1) RFRA supersedes other statutes, and (2) rights under RFRA should be treated as if they are constitutional rights. I respectfully disagree. Public interests can arise from non-statutory sources, and the rights under RFRA and the Constitution are distinct.
First, public interests are found in a variety of places, often outside of statutes. See, e.g., Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009) (discussing the public interest in ensuring access to “Plan B” for sexually active women of childbearing age without citing statutes that support that interest).
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Thus, even if a court of equity were to find that the public interest in RFRA always outweighs other statutory interests, it could also find that the non-statutory public interest in access to emergency contraceptives outweighs the public interest under RFRA for Hobby Lobby and Mardel to exercise religion.
Second, RFRA and the First Amendment are distinct and the scope of the protections are different. And when we address the likelihood of success, we are doing so in the context of the RFRA claims — not the constitutional claims.
In an effort to equate RFRA and the First Amendment, the plurality relies on Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001). ButKikumura compared RFRA to the Constitution in the context of only one equitable element: irreparable injury. Kikumura v. Hurley, 242 F.3d at 963. In that context, we simply applied the general rule that an injury is irreparable when the court would be unable to grant an adequate remedy at law. Id. With regard to the remaining equitable elements, however, we declined to conduct the initial balancing of the public interests and the equities. Id. Instead, we remanded for the district court to consider the applicable public interests even if the plaintiff were to show likelihood of success on the merits. Id. Thus, Kikumura does not support balancing of the public interests and equities on appeal even when the plaintiff is likely to succeed under RFRA. Indeed, by remanding in Kikumura, we did precisely the opposite of what the plurality would have us do here.
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In urging that we allow the district court to balance the remaining elements, I am mindful of the time pressures on the courts – and on Hobby Lobby and Mardel – as the deadline of July 1, 2013, approaches. Still, I do not think these time pressures should induce us to step outside of our institutional limits and usurp a role better suited to the district court. II. The Greens’ Standing to Sue in their Personal Capacities
In footnote 4, the plurality opinion states that we need not address the Greens’ standing. I believe, however, that we should do so. In addressing the Greens’ standing, we should consider whether Congress abrogated prudential restrictions in RFRA and, if not, whether the Greens’ alleged injuries derive solely from the injuries sustained by Hobby Lobby and Mardel.
In my view, Congress did not abrogate prudential-standing restrictions in RFRA, and the Greens’ claims derive solely from the alleged injuries sustained by Hobby Lobby and Mardel. As a result, I would direct the district court to dismiss the Greens’ claims based on the shareholder-standing rule.
A. Waiver Prudential-standing limitations are subject to waiver. See Finstuen v. Crutcher, 496 F.3d 1139, 1147 (10th Cir. 2007). But this court has discretion to address prudential standing sua sponte. Adams ex rel. D.J.W. v. Astrue, 659 F.3d 1297, 1299-1301 (10th Cir. 2011) (addressing a prudential-standing restriction sua sponte). We should invoke this discretion here, for we have raised the issue,
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obtained briefs on the parties’ positions, and learned that the Defendants object to the Greens’ claims based on prudential-standing limitations.
B. Abrogation by Congress If this Court were to address standing, we would need to consider whether Congress abrogated prudential-standing limitations in RFRA. The Greens argue that Congress abrogated these limitations by stating that standing under RFRA “shall be governed by the general rules of standing under article III of the Constitution.” 42 U.S.C. § 2000bb-1(c) (2006). In my view, this language does not eliminate prudential-standing restrictions. The restrictions apply unless they are expressly abrogated by Congress. Bennett v. Spear, 520 U.S. 154, 163-64 (1997). In § 2000bb-1(c), Congress never mentioned prudential restrictions or said that the standing rules under Article III would be exclusive. Instead, Congress simply said that Article III would govern standing issues under RFRA. At best, this language is ambiguous regarding Congress’s intent to modify prudential-standing rules. Notwithstanding the potential ambiguity in the text, Congress clarified its intent in the legislative history. There Congress stated that the language in RFRA is designed only to preserve the existing body of case law on article III limitations when taxpayers sue to challenge the tax-exempt status of religious institutions. See S. Rep. No. 103-111, at 12-13 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1902-03; H.R. Rep. 103-88 (1993), 1993 WL 158058. Though Congress rarely
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includes language solely to emphasize its intention to keep standing limitations, “that appears to be precisely what Congress did here.” Jackson v. District of Columbia, 254 F.3d 262, 267 (D.C. Cir. 2001). Indeed, in explaining the cited statutory language, the House Judiciary Committee noted that “[t]he Act would not provide a basis for standing in situations where standing to bring a free exercise claim is otherwise absent.” H.R. Rep. 103-88 (1993), 1993 WL 158058. As a result, I do not believe that Congress has expressly abrogated the prudentialstanding requirements through RFRA.
C. Application of the Shareholder-Standing Rule With this conclusion, I believe we should instruct the district court to dismiss the Greens’ claims under the shareholder-standing rule. One prudential limit on standing is the general restriction against asserting the legal rights and interests of third parties. See, e.g., Warth v. Seldin, 422 U.S. 490, 499-500 (1975). This restriction frequently applies when shareholders bring claims deriving solely from their relationship to the corporation. In such situations, courts generally apply the “shareholder-standing rule,” which “prohibits shareholders from initiating actions to enforce the rights of the corporation unless the corporation’s management has refused to pursue the same action for reasons other than good-faith business judgment.” Franchise Tax Bd. of Cal. v. Alcan Aluminium Ltd., 493 U.S. 331, 336 (1990). This rule is designed
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to “limit access to the federal courts to those litigants best suited to assert a particular claim.” Gladstone Realtors v. Bellwood, 441 U.S. 91, 100 (1979).
But sometimes shareholders and their corporations suffer distinct injuries. In these cases, courts have carved out an exception to the shareholder-standing rule, allowing shareholders to sue when they have “a direct, personal interest in a cause of action.” Franchise Tax Bd. of Cal. v. Alcan Aluminium Ltd., 493 U.S. 331, 336 (1990). Thus, the issue of standing turns on whether the Greens claim an injury from the Affordable Care Act that is direct and personal or merely derivative of the injury to Hobby Lobby and Mardel.
In my view, the Greens’ injury stemming from the Affordable Care Act is purely derivative of the corporations’ injury. The mandate does not require anything of the Greens; the obligation falls solely on the corporations.
In oral argument, the Greens argue that they incurred a direct injury from their duty to implement the contraceptive mandate for Hobby Lobby and Mardel. But the Greens are implementing these decisions as officers and directors of the corporations, not as individuals acting in their personal capacities.
The Greens must subordinate their own religious beliefs to fulfill their fiduciary duties under Oklahoma law as officers and directors of Hobby Lobby and Mardel. See Fields v. Victor Bldg. & Loan Co., 175 P. 529, 531 (Okla. 1918) (per curiam). As fiduciaries, the Greens must implement corporate decisions by
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setting aside their own religious beliefs and advancing the best interests of the corporations. See id.
In advancing the best interests of Hobby Lobby and Mardel, the Greens face a difficulty because the mandate creates conflicting interests for Hobby Lobby and Mardel: the financial interest in complying with the mandate and the religious interest in not covering insurance for certain contraceptives. But this Hobson’s choice falls solely on the two corporations, and the Greens’ injury is not directly or personally created by the Affordable Care Act. Instead, the Greens’ injury stems derivatively from their fiduciary duties under Oklahoma law to advance the conflicting financial and religious interests of Hobby Lobby and Mardel. As a result, I do not believe the Greens can avoid the shareholderstanding rule based on a “direct” or “personal” injury created by the Affordable Care Act.
Accordingly, I would remand with instructions to dismiss the Greens’ claims for lack of prudential standing under the shareholder-standing rule.
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No. 12-6294, Hobby Lobby Stores, Inc., et al. v. Sebelius, et al. BRISCOE, Chief Judge, concurring in part and dissenting in part, joined by LUCERO, Circuit Judge.
In its eagerness to afford rights under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment to Hobby Lobby and Mardel, the majority ignores the fundamental components upon which sound judicial decisionmaking is grounded: evidence, of which plaintiffs presented none; burdens of persuasion, which indisputably rest on the plaintiffs but which the majority effectively imposes on the defendants; and precedent, of which there is none to support the plaintiffs’ novel claims under RFRA, or the new class of corporations effectively recognized by the majority. I therefore dissent from the majority’s conclusion that Hobby Lobby and Mardel have established a substantial likelihood of success on the merits of their RFRA claims, and the majority’s concomitant decision to reverse the district court’s denial of plaintiffs’ motion for preliminary injunctive relief.
I. The Anti-Injunction Act Regarding the threshold question of the applicability of the Anti-Injunction Act (AIA), three judges would have us take the unnecessary step of concluding that the AIA is not jurisdictional, but instead a waivable, non-jurisdictional “claims processing rule.” Gorsuch Op. at 14, 15. In my view, it is sufficient

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simply to conclude, as everyone agrees, that the AIA does not apply to the RFRA claims asserted by Hobby Lobby and Mardel, and to leave the jurisdictional/nonjurisdictional question (which neither side has raised) for another case in which it matters. See generally Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (Scalia, J., dissenting) (“The values that should have determined our course today are caution [and] minimalism . . . .”). I therefore concur in the conclusion that the AIA does not bar the RFRA claims at issue in this appeal.
II. The Record on Appeal Section I of the majority opinion purports to outline the “Background & Procedural History” of this case, including a description of the plaintiffs and their businesses, and the types of drugs and devices mandated under the challenged contraceptive-coverage regulation. Reading this section, one would think either that the government had admitted all of the allegations in plaintiffs’ complaint, or, more likely, that the plaintiffs had presented a wealth of evidence at the preliminary injunction hearing to support those allegations. But as it turns out, neither is true. At the hearing on plaintiffs’ motion for preliminary injunction, plaintiffs presented no evidence of any kind. And, although the government opposed plaintiffs’ motion for preliminary injunction, it never had an opportunity to file an answer to plaintiffs’ complaint. That is because, shortly after the district court denied plaintiffs’ motion for preliminary injunction, the district court proceedings were stayed pending the outcome of this appeal.
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As a result, we know very little about any of the important facts of this case. For example, although the allegations in plaintiffs’ complaint touch on certain aspects of the structure and operation of the two corporate plaintiffs, we do not know, even assuming the truth of those allegations, precisely how each corporation was established, how it is structured, or how it is operated. Relatedly, plaintiffs presented no evidence attempting to demonstrate whether or how Hobby Lobby and Mardel hold religious beliefs, and whether or how these corporate plaintiffs, which collectively operate hundreds of retail stores and employ thousands of employees, exercise religion. In turn, plaintiffs presented no evidence indicating how the contraceptive-coverage regulation would burden Hobby Lobby’s and Mardel’s religious beliefs. Lastly, there is no evidentiary support in the record for plaintiffs’ allegations that the objected-to contraceptive drugs and devices actually have the potential to prevent implantation of fertilized eggs. To be sure, a review of the briefs filed in this case suggests there is agreement among the parties and amici that intrauterine devices have such potential. But the same cannot be said about the challenged contraceptive drugs (e.g., Plan B and Ella). See Tummino v. Hamburg, — F. Supp. 2d —, 2013 WL 1348656 at *1 (E.D.N.Y. Apr. 5, 2013) (finding that levonorgestrel-based emergency contraception, such as Plan B and Plan B One-Step, interfere with prefertilization events and have not been shown to interfere with implantation of a fertilized egg).
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In light of these evidentiary deficiencies, I fail to see how plaintiffs could reasonably be said to have carried their burden of establishing their entitlement to a preliminary injunction. And, relatedly, I am concerned, given these evidentiary deficiencies, about the majority’s eagerness to issue seemingly definitive rulings on the merits of plaintiffs’ novel claim that for-profit corporations are entitled to coverage under RFRA. See generally Kennedy v. Silas Mason Co., 334 U.S. 249, 256-57 (1948) (“noting that “summary procedures, however salutary where issues are clear-cut and simple, present a treacherous record for deciding issues of farflung import, on which this Court should draw inferences with caution from complicated courses of legislation”).
III. Are Hobby Lobby and Mardel Persons Exercising Religion Under RFRA? In the first part of its merits analysis, the majority addresses the question of
whether Hobby Lobby and Mardel qualify as “persons exercising religion for purposes of RFRA.” Maj. Op. at 25. As I shall outline below, the majority makes a number of critical mistakes in doing so. And its ultimate holding, which is unprecedented, is sufficiently ambiguous that neither the majority nor anyone else can confidently predict where it may lead, particularly when one considers how easily an “exercise of religion” could now be asserted by a corporation to avoid or take advantage of any governmental rule or requirement.
A. The majority begins its analysis by suggesting that Hobby Lobby has a
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“religious mission.” Id. The majority also notes, and effectively adopts, the plaintiffs’ characterization of the two corporations as “faith-based compan[ies].” Id. at 10.
These characterizations, however, find meager support in the factual record, and virtually no support in federal or state law. The certificates of incorporation for both Hobby Lobby and Mardel were submitted to the district court as exhibits to the defendants’ brief in opposition to plaintiffs’ motion for preliminary injunction and are now part of the joint appendix in this appeal. Notably, there is not a single reference to religion in either certificate. Instead, the certificates state simply that Hobby Lobby and Mardel were created for the purpose of “engag[ing] in any lawful act or activity for which corporations may be organized under the Oklahoma General Corporation Act.” JA at 162a, 166a. Consistent with these certificates, the plaintiffs’ complaint concedes that both Hobby Lobby and Mardel are “privately held, for-profit corporations[s]. . . organized under Oklahoma law.” Id. at 18a. More specifically, the complaint alleges that Hobby Lobby operates approximately 514 craft stores in the United States, selling “a variety of art and craft supplies, home decor, and holiday decorations.” Id. at 20a. As for Mardel, the complaint alleges that it is “a bookstore and educational supply company that specializes in Christian materials, such as Bibles, books, movies, apparel, church and educational supplies, and homeschool curricula.” Id. at 21a. Assuming the truth of these allegations,
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Hobby Lobby and Mardel are, in a nutshell, for-profit businesses focused on
selling merchandise to consumers.
To be sure, plaintiffs allege in their complaint that “Hobby Lobby’s
statement of purpose reads:
In order to effectively serve our owners, employees, and customers the Board of Directors is committed to:
Honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.
Offering our customers an exceptional selection and value.
Serving our employees and their families by establishing a work environment and company policies that build character, strengthen individuals, and nurture families.
Providing a return on the owners’ investment, sharing the Lord’s blessings with our employees, and investing in our community.
We believe that it is by God’s grace and provision that Hobby Lobby has endured. He has been faithful in the past, we trust Him for our future.”
Id. at 22a-23a. The complaint also alleges that “[t]he Green family’s business
practices . . . reflect their Christian faith in unmistakable and concrete ways.” Id.
at 14a. For example, they allege that “[t]hey give millions of dollars from their
profits to fund missionaries and ministries around the world,” and “they close all
their stores on Sundays, even though they lose millions in annual sales by doing
so.” Id.
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But these alleged facts, though perhaps establishing a sincerity of purpose on the part of the Green family that is rooted in their faith, cannot alter the basic for-profit status of the two corporations, or otherwise place these corporations into a unique class for purposes of RFRA in particular, or federal or state law in general. Significantly, the majority, despite employing the unique characterizations of “faith-based companies” and businesses with “a religious mission,” does not cite to a single source in support of this new legal category of for-profit corporation.
That is because it cannot. As far as I can determine, neither the United States Supreme Court nor any federal circuit court, until now, has ever used the phrase “faith-based company,” let alone recognized such a distinct legal category of for-profit corporations. Nor, as far as I can tell, has the United States Supreme Court or any federal circuit court, until now, recognized a for-profit corporation as having a “religious mission.” Finally, Oklahoma state law, under which Hobby Lobby and Mardel were formed and currently exist, does not recognize any such unique class of corporation.
B. The majority concludes that Hobby Lobby and Mardel are “persons” for purposes of RFRA. Maj. Op. at 25-35. In reaching this conclusion, the majority correctly notes that “RFRA contains no special definition of ‘person.’” Id.at 27. The majority thus turns to “the Dictionary Act, which instructs: ‘In determining
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the meaning of any Act of Congress, unless the context indicates otherwise * * * the word[] “person” . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.’” Id. (quoting 1 U.S.C. § 1). The majority then cites Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), which involved RFRA claims raised by a New Mexico-based religious sect organized as a non-profit corporation. Relying on O Centro, the majority asserts that “the Supreme Court has affirmed the RFRA rights of corporate claimants, notwithstanding the claimants’ decision to use the corporate form.” Maj. Op. at 27. Proceeding on the assumption that “at least some types of corporate entities can bring RFRA claims,” the majority then asks “whether Congress intended to exclude for-profit corporations, as opposed to non-profit corporations, from RFRA’s scope.” Id. at 28. Ultimately, the majority concludes that Congress “chose not to do so in RFRA,” id., and that, instead, “Congress meant ‘person’ in RFRA to [carry] . . . its default meaning in the Dictionary Act—which includes corporations regardless of their profit-making status,” id. at 34-35.
The problem, however, is that the majority fails to properly recognize that “the context [of RFRA, including its legislative history,] indicates otherwise,” 1 U.S.C. § 1, and thus it is unreasonable to assume from Congress’s silence that Congress anticipated that for-profit corporations would be covered as “persons” under RFRA. RFRA, as the majority notes, was enacted by Congress in response
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to the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), which construed the Free Exercise Clause of the First Amendment to hold that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U.S. 507, 514 (1997). In Congress’s view, “the compelling interest test as set forth in [pre-Smith] Federal court rulings [wa]s a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U.S.C. § 2000bb(a)(5). Thus, RFRA was intended “to restore the compelling interest test . . . and to guarantee its application in all cases where free exercise of religion is substantially burdened.” Id.§ 2000bb(b)(1). In short, the purpose of RFRA was restoration of pre-Smith free exercise jurisprudence, not expansion of the scope of the Free Exercise Clause. See O Centro, 546 U.S. at 1216 (noting that Congress, by way of RFRA, “adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith.”); Vill. of Bensenville v. Fed. Aviation Admin., 457 F.3d 52, 62 (D.C. Cir. 2006) (“[W]ith RFRA Congress intended to ‘restore’ the standard by which federal government actions burdening religion were to be judged, not to expand the class of actions to which the standard would be applied.”).
The relevant context, then, is the body of free exercise case law that existed at the time of RFRA’s passage. See Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1082 (2011) (“When all (or nearly all) of the relevant judicial decisions have
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given a term or concept a consistent judicial gloss, we presume Congress intended
the term or concept to have that meaning when it incorporated it into a later-
enacted statute.”) (internal quotation marks omitted); Stewart v. Dutra Constr.
Co., 543 U.S. 481, 490 (2005) (examining “[t]he context surrounding the . . .
enactment” of the statute at issue); Rowland v. Calif. Men’s Colony, 506 U.S.
194, 199 (1993) (holding that context includes “the texts of other related
congressional Acts”).1 And the proper inquiry is whether, at the time of RFRA’s
passage, the Supreme Court had said anything about for-profit corporations
possessing and exercising rights under the Free Exercise Clause of the First
Amendment.2 Plaintiffs, who carry the burden on this inquiry, provide us with no
1 Obviously, there were no “related congressional Acts” that existed at the time of RFRA’s passage. Because, however, RFRA was intended to effectively overrule Smith and supplement the existing body of free exercise case law, City of Boerne, 521 U.S. at 531 (noting that RFRA was intended “to attempt a substantive change in constitutional protections”), it is precisely that existing body of free exercise case law that provides the proper context for understanding the text of RFRA.
2 The majority ignores this inquiry and instead concludes, after discussing religious exemptions contained in Title VII, the Americans with Disabilities Act, and the National Labor Relations Act, that “Congress knows how to craft a corporate religious exemption, but chose not to do so in RFRA.” Maj. Op. at 28. But those statutes, all of which address the relationship between an employer and an employee, are significantly different than RFRA and, in my view, do not support the majority’s assumption that Congress anticipated that for-profit corporations would be deemed “persons” under RFRA. Indeed, I believe we must assume just the opposite since, at the time of RFRA’s passage, Congress had never exempted for-profit corporations, on the basis of religious reasons, from any of these employment-related laws. As I discuss in greater detail below, affording for-profit corporations rights under RFRA effectively creates a
(continued...)
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persuasive authority.3 Indeed, they don’t even directly address this question. Not
because they have overlooked precedent. But rather because none exists. At the
time of RFRA’s passage, the Supreme Court had never addressed whether, let
alone recognized that, a for-profit corporation possessed free exercise rights
under the First Amendment. In other words, during the 200-year span between
the adoption of the First Amendment and RFRA’s passage, the Supreme Court
2(...continued) religious-based exemption to any number of federal statutes, including all of those that impact the employer-employee relationship. Because, however, Congress has never expressly created any such exemption in any employmentrelated laws, it is improper for us to effectively create such exemptions based upon Congress’s silence in employing the term “person” in RFRA.
3 The majority properly acknowledges, as it must, that the plaintiffs carry two related burdens at this stage of the proceedings. First, to establish their entitlement to a preliminary injunction. Maj. Op. at 24. Second, to prove that there is a substantial likelihood that they will establish “a prima facie case under RFRA by showing that the government substantially burdens a sincere religious exercise.” Id. at 19. But in addressing whether Hobby Lobby and Mardel “can take advantage of RFRA’s protections,” Maj. Op. at 31, the majority quite clearly places the burden of persuasion on the defendants, rather than on the plaintiffs who, as the parties seeking relief under RFRA and the movants seeking preliminary injunctive relief, properly carry that burden. In particular, the majority, rather than examining what precedents, if any, the plaintiffs can muster in support of their position, focuses almost exclusively on the defendants’ arguments in opposition to the plaintiffs’ RFRA claims. E.g., at 26 (“The government makes two arguments for why this is not the case.”), id. (“We reject both of these arguments.”), 32 (“we do not see what the government sees in Amos”), id. (“Nor do the other post-RFRA circuit cases on which the government relies provide more guidance.”), 34 (“to the extent the government sees Spencer and Great Falls as following principles laid down in Amos . . . we disagree.”), id. (“In conclusion, the government has given us no persuasive reason to think that Congress meant ‘person’ in RFRA to mean anything other than its default meaning in the Dictionary Act”).
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consistently treated free exercise rights as confined to individuals and non-profit religious organizations. E.g., Jimmy Swaggart Ministries v. Bd. of Equalization of Calif., 493 U.S. 378 (1990) (addressing free exercise claims asserted by religious organization); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223 (1963) (holding that the purpose of the Free Exercise Clause is “to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority.”) (emphasis added). And, in United States v. Lee, 455 U.S. 252 (1982), decided approximately a decade prior to RFRA’s enactment, the Supreme Court emphasized that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Id.at 261. In light of this body of precedent, the only reasonable conclusion we can draw is that Congress, in employing the term “person” in RFRA, anticipated that it would encompass only individuals and non-profit religious organizations.
The limitation of RFRA’s applicability to individuals and non-profit religious organizations is reinforced by examining the legislative history of RFRA. In discussing the “BACKGROUND AND NEED” for RFRA, Congress noted “that the right to observe one’s faith, free from Government interference, . . . is enshrined in the free exercise clause of the first amendment.” Religious Freedom Restoration Act of 1993, S. Rep. 103-111 (1993), reprinted in1993
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U.S.S.C.A.N. 1892, 1893-94 (emphasis added). In turn, Congress recognized that “[t]his fundamental constitutional right may be undermined . . . by governmental rules of general applicability which operate to place substantial burdens on individuals’ ability to practice their faiths.” Id. at 1894 (emphasis). Congress further stated that “[t]he extent to which the Free Exercise Clause requires government to refrain from impeding religious exercise defines nothing less than the respective relationships in our constitutional democracy of the individual to government and to God.” Id. at 1897 (emphasis added). Later, in discussing the intended purpose of RFRA and its impact on other areas of the law, Congress made explicit reference to “religious institutions” and “religious organizations.” Id. at 1898 (“The act thus would not require such a justification for every government action that may have some incidental effect on religious institutions.”), 1902 (“the courts have long adjudicated cases determining the appropriate relationship between religious organizations and government.”). Entirely absent from the legislative history, however, is any reference to for-profit corporations. In short, Congress clearly recognized that individuals and religious organizations enjoy free exercise rights, and thus it anticipated that RFRA’s reach would extend to them. But nowhere is there any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corporations.
Consequently, it comes as no surprise that not a single case, until now, has extended RFRA’s protections to for-profit corporations. Although the majority
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finds significance in the Supreme Court’s O Centro decision, see Maj. Op. at 27 (“the Supreme Court has affirmed the RFRA rights of corporate claimants”), the fact of the matter is that the plaintiff in O Centro was a New Mexico non-profit corporation, specifically “[a] religious sect with origins in the Amazon Rainforest.” 546 U.S. at 423. Thus, O Centrois entirely consistent with preRFRA free exercise precedent and tells us nothing about RFRA’s application to for-profit corporations.
The same can be said for Citizens United v. FEC, 558 U.S. 310 (2010). In Citizens United, the Supreme Court held that corporations have free speech rights under the First Amendment. But that holding has no bearing on our assessment of RFRA’s “context” because it was issued nearly twenty years after RFRA’s enactment, and it dealt with a different provision of the First Amendment than the one Congress was concerned with in RFRA. See generallyConestoga Wood Specialities Corp. v. Sebelius, — F.Supp.2d —, 2013 WL 140110 at *7(E.D. Pa. Jan. 11, 2013) (“Although [the Free Speech and Free Exercise Clauses]reside within the same constitutional amendment, these two provisions have vastly different purposes and precedents, and we decline to make the significant leap Plaintiffs ask of us without clear guidance from Congress or the Supreme Court.”). In short, a 2010 Supreme Court decision concerning the First Amendment free speech rights of a corporation cannot, in retroactive fashion, impact our determination of what Congress intended when it enacted RFRA in
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1993.4
In sum, “there is no plausible basis for inferring that Congress intended or
could have anticipated” that for-profit corporations would be covered by RFRA.
McQuiggin v. Perkins, 133 S. Ct. 1924, 1942 (2013) (Scalia, J., dissenting). The
majority’s conclusion to the contrary thus “amounts to a pure judicial override of
the statute Congress enacted.” Id.
C.
Having concluded that Hobby Lobby and Mardel qualify as “persons” for
purposes of RFRA, the majority in turn concludes, “as a matter of constitutional
law, [that] Free Exercise rights may extend to some for-profit organizations.”
Maj. Op. at 26. In doing so, the majority purports to rely on the precise body of
case law that it ignored in assessing the “context” of RFRA, i.e., pre-RFRA
“jurisprudence regarding who can bring Free Exercise claims.” Maj. Op. at 36.
And, despite the fact that, as I have explained, this jurisprudence does not include
a single case extending free exercise rights to for-profit corporations, the majority
4 To the extent the majority means to suggest that RFRA can incorporate evolving free exercise or First Amendment case law, that view is simply wrong. Although RFRA originally defined free exercise as “the exercise of religion under the First Amendment to the Constitution, 42 U.S.C. § 2000bb-2(4) (1999), Congress subsequently amended this part of RFRA to instead provide a fixed statutory definition of religious exercise for both RFRA and the Religious Land Use and Institutionalized Persons Act of 2000. This fixed statutory definition makes no reference to the First Amendment and instead provides that “religious exercise” includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A).
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concludes, remarkably, that at least some for-profit corporations enjoy free exercise rights.
How does the majority arrive at this conclusion? It first asserts, correctly, that the Supreme Court has recognized “‘a right to associate for the purpose of . . . exercis[ing] . . . religion,’” Maj. Op. at 37 (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984) (addressing claim brought by non-profit civic and service organization)), and that, consequently, “the Free Exercise Clause at least extends to associations like churches—including those that incorporate,” id.5 It then asserts, again correctly, that “the Supreme Court has settled that individuals have Free Exercise rights with respect to their for-profit businesses,” i.e., sole proprietorships. Id. at 38 (emphasis in original; citing Lee and Braunfeld v. Brown, 366 U.S. 599 (1961)).
From there, however, the majority abandons its purported examination of pre-RFRA jurisprudence and “wander[s] into uncharted areas of the law with no compass other than [its] own opinions about good policy.” Denver Area Educ. Telecomm. Consortium, Inc. v. F.C.C., 518 U.S. 727 (1996) (Kennedy, J., concurring in part and dissenting in part). To begin with, the majority, noting
5 In doing so, the majority cites to, but does not place significant reliance on, the Supreme Court’s decision in Citizens United. Maj. Op. at 37. As I have already explained, I agree that Citizens United, which held that corporations have free speech rights under the First Amendment, has no bearing on the outcome of this appeal.
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that the First Amendment was intended by Congress to protect not only belief but conduct, suggests that “religious conduct includes religious expression . . . communicated by . . . for-profit corporations,” Maj. Op. at 39, such as the alleged efforts by Hobby Lobby and Mardel to “proselytize by purchasing hundreds of newspaper ads to ‘know Jesus as Lord and Savior,’” id.at 40 (quoting JA at 24a). But the majority cites to no authority suggesting that Congress, either at the time of the First Amendment’s adoption or the passage of RFRA, remotely considered, let alone firmly believed, that for-profit corporations, as entities separate fromthe individuals that form them, could “exercise religion.”
Indeed, at the time of RFRA’s passage, the law had long distinguished between categories of corporations based upon “the specific purposes of their creation.” Bank of Augusta v. Earle, 38 U.S. 519, 580 (1839); see Lankford v. Menefee, 145 P. 375, 378 (Okla. 1914) (“Every such corporation must be organized or incorporated for a particular purpose.”). In particular, “corporations [we]re, from the particular purposes to which they [we]re devoted, denominated spiritual, and some lay; and the latter . . . again divided into civil and eleemosynary corporations.”6 Trustees of Dartmouth College v. Woodward, 17
6 In this case, it is quite clear even from the little we know about Hobby Lobby and Mardel that, notwithstanding the intentions of the Green family to operate them in a manner consistent with Biblical principles, they were created for the specific purpose of selling goods and making a profit. In other words, nothing in the record on appeal remotely suggests that Hobby Lobby and Mardel
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U.S. 518, 668 (1819). And, quite logically, only those “spiritual” corporations, i.e., non-profit religious organizations, had been recognized as having the ability to “exercise religion.”
In turn, the majority, citing Citizens United, asserts there is “no reason [why] the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.” Maj. Op. at 40. But, as I have already noted, there are a number of reasons why we must not allow Citizens United to impact our assessment of what Congress anticipated or intended when it enacted RFRA: Citizens United was issued nearly twenty years after RFRA; it dealt with the Free Speech Clause rather than the Free Exercise Clause of the First Amendment; and “mark[ed] a dramatic break from” the Court’s prior Free Speech precedents. Citizens United, 558 U.S. at 394 (Stevens, J., dissenting).
The majority next states that it “cannot see why an individual operating for profit retains Free Exercise protections but an individual who incorporates—even as the sole shareholder—does not, even though he engages in the exact same activities as before.” Maj. Op. at 40. The obvious response to this is that, in the latter situation, a new entity separate from the natural individual has been formed.
6(...continued) were created primarily to function as a vehicle through which a group of believers could associate and collectively exercise their religion.
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The Supreme Court has clearly stated that “incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001). Consistent with these principles, Oklahoma law, under which Hobby Lobby and Mardel were created and continue to exist, provides that “even a family corporation is a separate and distinct legal entity fromits shareholders.” Sautbine v. Keller, 423 P.2d 447, 451 (Okla. 1966); see Fanning v. Brown, 85 P.3d 841, 846 (Okla. 2004) (“Generally, a corporation is regarded as a legal entity, separate and distinct from the individuals comprising it.”).7 And, as I have noted, the specific purpose for which this new entity is created matters greatly to how it will be categorized and treated under the law.
The majority, obviously aware of these legal distinctions, asserts that “[t]his cannot be about the protections of the corporate form, such as limited liability and tax rates,” because “[r]eligious associations can incorporate, gain those protections, and nonetheless retain their Free Exercise rights.” Maj. Op. at 40. In turn, the majority asserts, with no support other than its own view of public policy, that “sincerely religious persons could find a connection between
7 Given the apparent ownership structure of the two corporate plaintiffs in this case, the majority would apparently have us disregard two organizational structures: first, the corporate structure of Hobby Lobby and Mardel; second, the organizational structure of the trusts that actually own Hobby Lobby and Mardel.
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the exercise of religion and the pursuit of profit.” Id.at 41. Finally, the majority suggests, most remarkably and again with no support other than its own views, that the operation of a successful for-profit corporation can reasonably be viewed as a “form of evangelism” on the part of its owners. Id. Consequently, the majority concludes, such businesses, which it has effectively deemed “faith-based businesses” or businesses with a “religious mission,” are entitled to free exercise rights.
This is nothing short of a radical revision of First Amendment law, as well as the law of corporations. But whatever one might think of the majority’s views, the fact remains that they are wholly unsupported by the language of the Free Exercise Clause or the Supreme Court’s free exercise jurisprudence, and are thus, at best, “considerations for the legislative choice.” North Dakota State Bd. of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156, 167 (1973). Adhering to the Supreme Court’s holdings, as we must, there is, as I have explained, literally no support for the proposition that for-profit corporations enjoy free exercise rights.
Finally, the majority poses a series of hypothetical questions intended to call into question what it refers to as “the for-profit/non-profit distinction.” E.g,. Maj. Op. at 41-42 (“What if Congress eliminates the for-profit/non-profit distinction in tax law? Do for-profit corporations then gainFree Exercise rights? Or do non-profits lose Free Exercise rights?”). But that purported distinction is
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not entirely accurate. As I have explained, the Supreme Court’s free exercise jurisprudence tells us two key things: non-profit religious organizations, including those that have assumed the corporate form, enjoy free exercise rights; for-profit corporations have never been recognized as enjoying free exercise rights. Whatever theoretical distinctions might be raised by the majority concerning categories of non-profit corporations are immaterial for purposes of this appeal because it is undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers. Under the Supreme Court’s free exercise jurisprudence, there is no basis for concluding that they enjoy free exercise rights.
D. Having concluded that RFRA’s protections may, at least in some instances, extend to for-profit corporations, the majority proceeds to conclude that Hobby Lobby and Mardel in particular are entitled to RFRA’s protections. In doing so, the majority lists, but does not otherwise explain, four factors that it considers relevant to that determination: (1) “Hobby Lobby and Mardel are not publicly traded corporations”; (2) “they are closely held family businesses with an explicit Christian mission as defined in their governing principles”; (3) “[t]he Greens . . . have associated through Hobby Lobby and Mardel with the intent to provide goods and services while adhering to Christian standards as they see them, and they have made business decisions according to those standards”; and (4) “the
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Greens are unanimous in their belief that the contraceptive-coverage requirement violates the religious values they attempt to follow in operating Hobby Lobby and Mardel.” Maj. Op. at 44.
In my view, these factors are problematic. To begin with, the first and second factors emphasize the fact that Hobby Lobby and Mardel are closely held corporations. But the majority offers no explanation as to why that factor is key in affording Hobby Lobby and Mardel rights under RFRA. And, in turn, the majority fails to explain whether (or why) registration as a publicly held corporation deprives a for-profit corporation of rights under RFRA.
As I see it, the publicly-held/closely-held distinction identified in the first and second factors, as well as the “unanimity of belief” mentioned in the fourth factor, are relevant only to the extent that they allow the majority to take into account the personal religious beliefs of the corporations’ founders and owners — although, as I have noted, the Greens apparently do not directly own Hobby Lobby or Mardel, but rather these corporations are owned by trusts that are not named as party plaintiffs. Indeed, the majority’s stated third and fourth factors make that clear by emphasizing the Greens’ religious beliefs in general, and their beliefs regarding the contraceptive-coverage requirement in particular. But by doing so, the majority disregards the legal distinctions between the corporate entities and the individual founders/owners. Nothing that I amaware of in federal or Oklahoma state law allows the majority to do so. To be sure, “Oklahoma has
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long recognized the doctrine of disregarding the corporate entity in certain circumstances.” Fanning, 85 P.3d at 846. In particular, Oklahoma “[c]ourts may disregard the corporate entity and hold stockholders personally liable for corporate obligations or corporate conduct under the legal doctrines of fraud, alter ego and when necessary to protect the rights of third persons and accomplish justice.” Id. Neither the plaintiffs nor the majority, however, cite to a single case that would allow us to employ these doctrines in a situation such as this. Moreover, as some of the defendants’ amici have noted, it is simply unreasonable to allow the individual plaintiffs in this case to benefit, in terms of tax and personal liability, from the corporate/individual distinction, but to ignore that distinction when it comes to asserting claims under RFRA.
Although the plaintiffs have argued that Hobby Lobby and Mardel may bring RFRA claims on behalf of the individual plaintiffs in a representative capacity, there is no indication that the majority agrees with that argument or is otherwise relying on the doctrine of associational standing. Indeed, the majority appears to recognize that the doctrine of associational standing does not apply to the alleged facts of this case. Maj. Op. at 44 n.11 (“This is not a special case of associational standing.”); see United Food and Comm. Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 552 (1996) (discussing “[t]he modern doctrine of associational standing, under which an organization may sue to redress its members’ injuries, even without a showing of injury to the association
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itself”); Harris v. McRae, 448 U.S. 297, 321 (1980) (holding that a non-profit religious organization lacked associational standing to assert the free exercise rights of its members). But, notwithstanding its apparent rejection of plaintiffs’ associational standing argument, the majority nevertheless looks to the religious beliefs of the individual plaintiffs in assessing whether the corporate plaintiffs, Hobby Lobby and Mardel, are entitled to protection under RFRA.
To be sure, the second factor listed by the majority emphasizes the purported “explicit Christian mission” of the two corporate plaintiffs. But all we know at this point, based upon the limited record, is that Hobby Lobby’s statement of purpose allegedly includes a reference to “Biblical principles.” JA at 22a. Precisely why that is sufficient to accord Hobby Lobby rights under RFRA is unexplained by the majority. Indeed, the majority dodges several related questions: (1) whether a corporation can “believe” at all, seeCitizens United, 130 S. Ct. at 972 (“It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.”) (Stevens, J., concurring in part and dissenting in part); (2) if so, precisely how courts are to go about determining a for-profit corporation’s religious beliefs, and (3) whether a for-profit corporation has “cognizable religious liberties independent of the people who animate” it, Grote v. Sebelius, 708 F.3d 850, 856 (7th Cir. 2013) (Rovner, J., dissenting).
Curiously, the majority declines to indicate whether the four factors it mentions are intended to be exclusive, or even controlling. Maj. Op. at 45 (“We
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need not decide today whether any of these factors is necessary.”). Likewise, it
refuses to address concerns raised by the defendants concerning how the factors
might translate to “a large publicly traded corporation [seeking]to assert religious
rights under RFRA.” Id. at 44. Thus, the precise scope of the majority’s holding
remains unclear. That said, however, it is difficult to imagine why the majority’s
holding would not apply to any number of large, closely-held corporations that
employ far more employees, and generate substantially more revenue, than Hobby
Lobby and Mardel.
And, if all it takes for a corporation to be categorized as a “faith based
business” for purposes of RFRA is a combination of a general religious statement
in the corporation’s statement of purpose and more specific religious beliefs on
the part of the corporation’s founders or owners, the majority’s holding will have,
intentionally or unwittingly, opened the floodgates to RFRA litigation challenging
any number of federal statutes that govern corporate affairs (e.g., Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act).8 See City of Boerne,
8 Americans United for Separation of Church and State assert in their amicus brief, and I agree, that the majority’s holding
would transcend the provision of coverage for contraception. A Jehovah’s Witness could choose to exclude blood transfusions from his corporation’s health-insurance coverage. Catholic-owned corporations could deprive their employees of coverage for end-oflife hospice care and for medically necessary hysterectomies. Scientologist-owned corporations could refuse to offer their employees coverage for antidepressants or emergency psychiatric
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521 U.S. at 532 (noting that RFRA’s “[s]weeping coverage” has the potential to “displac[e] laws and prohibit[] official actions of almost every description and regardless of subject matter.”); id. at 534 (noting the potential of RFRA to exact “substantial costs . . . , both in practical terms of imposing a heavy litigation burden on the [government] and in terms of curtailing [its] traditional general regulatory power”). In short, the majority’s holding threatens to entangle the government in the impermissible business of determining whether for-profit corporations are sufficiently “religious” to be entitled to protection under RFRA from a vast array of federal legislation. See Snyder v. Murray City Corp., 159 F.3d 1227, 1243 (10th Cir. 1998) (Lucero, J., concurring) (“[A]s Madison recognized, ‘religion flourishes in greater purity, without than with the aid of Government.’” (alteration omitted) (quoting James Madison, Memorial and Remonstrance against Religious Assessments (1785), in The Complete Madison 309 (S. Padover ed. 1953))).
E. For all of these reasons, I reject the majority’s conclusion that Hobby
8(...continued) treatment. And corporations owned by certain Muslims, Jews, or Hindus could refuse to provide coverage for medications or medical devices that contain porcine or bovine products – including anesthesia, intravenous fluids, prostheses, sutures, and pills coated with gelatin. Br. of Amici Curiae Am. United for Separation of Church and State, Inc., at 35.
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Lobby and Mardel are “persons” exercising religion for purposes of RFRA. And, consequently, I conclude on that basis that Hobby Lobby and Mardel have failed to carry their burden of establishing a likelihood of success on the merits of their RFRA claims.
IV. Substantial Burden In the second part of its merits analysis, the majority addresses the question of “whether the contraceptive-coverage requirement constitutes a substantial burden on plaintiffs’ exercise of religion.” Maj. Op. at 45. At the outset, the majority purports to “identify the religious belief in this case.” Id.at 52. But it commits two errors in doing so. To begin with, the majority once again conflates the alleged beliefs of the individual and corporate plaintiffs. In particular, the majority states that “[t]he corporate plaintiffs believe life begins at conception.” Id. To be sure, the complaint reasonably alleges that the individual plaintiffs possess this belief. But nothing in the plaintiffs’ complaint suggests that Hobby Lobby or Mardel have ever taken an official stance on this particular topic. Instead, the complaint alleges only that Hobby Lobby’s statement of purpose makes reference to “Biblical principles.” JA at 22a. Consequently, the majority is left to treat the religious beliefs of the individual plaintiffs as those of Hobby Lobby and Mardel, even though doing so violates basic principles of corporation law. The majority also fails to carefully parse, and thus overstates, the nature of
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the plaintiffs’ religious beliefs. It is undisputed that the individual plaintiffs believe, as part of their religion, that “life begins at conception.” Maj. Op. at 52. But, in addition to erroneously treating these beliefs as belonging to the corporate plaintiffs, the majority erroneously concludes that these beliefs encompass the plaintiffs’ views regarding the contraceptive drugs Plan B and Ella, as well as certain intrauterine devices.
I agree that the clear offshoot of plaintiffs’ belief that life begins at conception is their belief, also religious in nature, that any action that threatens to harm a fertilized egg, including by preventing it fromimplanting in the uterus, is immoral. But what is the connection between these religious beliefs and plaintiffs’ opposition to Plan B, Ella, and certain intrauterine devices? According to plaintiffs’ complaint and their motion for preliminary injunction, it is statements from the Food and Drug Administration (FDA), in particular an “FDA birth control guide,” suggesting “that Plan B and Ella may work by preventing ‘attachment (implantation)’ of a fertilized egg to a woman’s uterus.” JA at 33a (complaint); see id. at 50a (allegation in complaint that “[s]ome FDA-approved ‘contraceptives’ cause abortions.”) and 70a (reference in motion for preliminary injunction to “FDA Birth Control Guide”). In other words, the connection is not one of religious belief, but rather of purported scientific fact, i.e., how the challenged contraceptives operate to prevent pregnancy. Consequently, rather than being off limits to examination, plaintiffs’ allegations regarding the abortion-
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causing potential of the challenged drugs are subject not only to examination but evidentiary proof. In short, they must be proven by plaintiffs on the basis of sufficient evidence.
As I have noted, however, plaintiffs presented no evidence at all during the hearing on their motion for preliminary injunction. That failure is not entirely fatal to their claims, because there appears to be agreement among the parties and amici that certain intrauterine devices actually have, as a matter of scientific fact, the potential to prevent implantation of a fertilized egg. But there is no such consensus with respect to the contraceptive drugs challenged by the plaintiffs. E.g., Br. of Amici Curiae Physicians for Reprod. Health, et al., at 8-15 (discussing the current scientific evidence regarding how the challenged contraceptive drugs function to prevent pregnancy and asserting that the FDA labels for these drugs do not reflect this evidence). Consequently, plaintiffs’ tactical decision to present no evidence on this point appears, to me, to prevent them from establishing that the regulatory requirement to provide healthcare coverage encompassing these drugs substantially burdens their exercise of religion.
V. Remaining Preliminary Injunction Factors I also believe that the plurality errs in its consideration of the three remaining preliminary injunction factors, i.e., whether Hobby Lobby and Mardel face irreparable harm, whether the balance of equities tips in favor of Hobby
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Lobby and Mardel, and whether an injunction is in the public interest. The plurality suggests it is proper for this court to address each of those factors in the first instance because “[t]he record we have is the record the parties chose to create below,” Maj. Op. at 63, “this record suffices for us to resolve each of the remaining preliminary injunction factors,” id., RFRA is analogous to constitutional law and thus plaintiffs’ likelihood of success on the merits of their RFRA claims should be considered a determinative factor, id. at 63-64, and the government did not “contest[] the factual adequacy or accuracy of Hobby Lobby’s allegations,” all of which were contained in “a verified complaint,” id. at 65.
Surely, however, the plaintiffs, as the parties who unsuccessfully moved for a preliminary injunction and now appeal from the district court’s decision, must be required to present some evidence to establish the remaining three preliminary injunction factors. Although the plurality suggests that the existing record is sufficient to resolve the remaining factors, the plaintiffs presented literally no evidence at the preliminary injunction hearing. And, although it is true that plaintiffs filed a verified complaint, defendants have not yet had an opportunity to file an answer to the complaint. Thus, we do not yet know which of the plaintiffs’ allegations might be admitted by the defendants. Finally, we must not forget that the district court denied plaintiffs’ motion for preliminary injunction based solely on its conclusion that plaintiffs failed to demonstrate a probability of success on the merits of their RFRA claims. JA at 228a-229a. Consequently, the
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district court concluded “it [wa]s unnecessary to determine whether the three other [preliminary injunction] factors tip[ped] in [plaintiffs’] favor.” Id. at 229a n.19. It is thus completely understandable why the defendants in this appeal have focused their arguments on the likelihood of success factor: that, as I have noted, was the sole basis for the district court’s decision. And, presumably, the defendants believed, and reasonably so, that if we disagreed with the district court’s conclusion, we would remand the case to the district court for further consideration of the remaining three preliminary injunction factors (all of which the defendants vigorously disputed in opposing plaintiffs’ motion for preliminary injunction in the district court proceedings, see id. at 156a-158a).
VI. The Individual Plaintiffs’ Standing to Sue under RFRA As a final matter, I believe it necessary to briefly address several points raised by Judge Gorsuch and Judge Matheson regarding the Article III standing of the individual plaintiffs. At the outset of his concurring opinion, Judge Gorsuch asserts that “[n]o one before us disputes that the [regulation] compels Hobby Lobby and Mardel to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg.” Gorsuch Op. at 1. As I have already explained, however, there are, indeed, factual disputes regarding the actual potential of the challenged drugs to destroy a fertilized human egg. And because the plaintiffs collectively failed to present any evidence to support their allegations regarding these
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challenged drugs, there is no basis upon which a preliminary injunction could be issued that relieves Hobby Lobby and Mardel from offering its employees coverage for those drugs.
Judge Gorsuch proceeds to suggest that there are two bases upon which the individual plaintiffs have Article III standing. First, he suggests the individual plaintiffs have Article III standing “because the company shares of which they are the beneficial owners would decline in value if the mandate’s penalties for noncompliance were enforced.” Id. at 6. Although there is no disputing the principle that “shareholders suffer injury in the Article III sense when the corporation incurs significant harm, reducing the return on their investment and lowering the value of their stockholdings,” Grubbs v. Bailes, 445 F.3d 1275, 1280 (10th Cir. 2006), the problem in this case is that, as far as we know, the individual plaintiffs are not the shareholders of Hobby Lobby and Mardel. Rather, plaintiffs’ complaint alleges that both corporations are owned by trusts. JA at 13a. Thus, there is no basis in the limited record on appeal for concluding that the individual plaintiffs can rely on this principle of Article III standing. And even if we were to assume otherwise, I agree with the views expressed in Section II of Judge Bacharach’s concurring opinion that Congress did not abrogate prudentialstanding restrictions in RFRA and that the shareholder standing rule would prevent the individual plaintiffs from asserting distinct claims under RFRA.
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Judge Gorsuch and Judge Matheson, in their separate concurring opinions, also suggest that the individual plaintiffs have Article III standing on the basis of a novel “management standing” rule. As Judge Gorsuch describes it in his concurring opinion, the individual plaintiffs, “as the exclusive and controlling owners of Hobby Lobby and Mardel, are the human beings who must direct the corporations to comply with the [contraceptive-coverage regulation] and do so in defiance of their faith.” Gorsuch Op. at 10. On this point, I agree with Judge Bacharach that the so-called “choice” that results from the contraceptive-coverage regulation “falls solely on the two corporations, and the [individual plaintiffs]’ injury is not directly or personally created by the Affordable Care Act.” Bacharach Op. at 10.
In addition, to the extent the individual plaintiffs in this case are involved in the corporate decisionmaking of Hobby Lobby and Mardel, I am not persuaded that the contraceptive-coverage regulation imposes a substantial burden on the exercise of their religion. The contraceptive-coverage regulation requires employers such as Hobby Lobby and Mardel to provide to their employees health insurance coverage for the full range of FDA-approved contraceptive drugs and devices. Period. Although the plaintiffs, and in turn Judge Matheson, artfully suggest that compliance with the regulation “would assist others in using particular contraceptives,” Matheson Op. at 15, the fact of the matter is that the regulation is drug/device-neutral. And the decision of a female employee as to
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which contraceptive drug or device to use remains a private matter of individual choice. Thus, neither an employer, nor its officers and directors, by choosing to comply with the contraceptive-coverage regulation, become a party to, or otherwise encourage, an individual employee’s decision to use a particular drug or device. See Grote, 708 F.3d at 865 (Rovner, J., dissenting) (“No individual decision by an employeer and her physician—be it to sue contraception, treat an infection, or have a hip replaced—is in any meaningful sense the [employer’s or company owner’s] decision or action.”); cf. Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) (upholding a state school voucher programon the ground that “[t]he incidental advancement of a religious mission . . . is reasonably attributable to the individual [voucher] recipient, not to the government, whose role ends with the disbursement of benefits.”). But, by recognizing a new “management standing” rule applicable to the individual plaintiffs, Judge Gorsuch and Judge Matheson “upend th[is] traditional understanding” and effectively conclude “that when a company insures its employees’ health care, a company owner indeed is a party to that care, with a cognizable religious interest in what services are made available to the employee.” Grote, 708 F.3d at 865 (Rovner, J., dissenting). In my view, “[h]olding that a company [owner]’s religious beliefs and practices are implicated by the autonomous health care decisions of company employees, such that the obligation to insure those decisions, when objected to by [the owner], represents a substantial burden on that [owner]’s religious liberties [is] an
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[unduly] expansive understanding of what acts in the commercial sphere meaningfully interfere with an individual’s religious beliefs and practices.” Id.at 866.
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No. 12-6294, Hobby Lobby Stores, Inc., et al. v. Sebelius, et al. MATHESON, J., concurring in part and dissenting in part.
INTRODUCTION The plaintiffs in this case are two corporations—Hobby Lobby and Mardel—and the owners and managers of those corporations—the Greens. Asserting claims under the Religious Freedom Restoration Act (“RFRA”) and the Free Exercise Clause, these corporate and individual plaintiffs challenge a federal regulation requiring employers to provide employee health insurance that covers certain contraceptives. The challenged regulation (“the Regulation”) was promulgated under the 2010 Patient Protection and Affordable Health Care Act and applies to Hobby Lobby and Mardel. The Greens allege that it burdens their religious beliefs to manage their corporations in compliance with the Regulation by providing health insurance coverage for the contraceptives at issue. The plaintiffs seek a preliminary injunction to bar the enforcement of the Regulation. In addressing this request for “an extraordinary remedy never awarded as of right,” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008), we cannot forget that the corporate and individual plaintiffs are not on common legal and factual ground. Each faces a unique set of problems that must be overcome to obtain a preliminary injunction. Hobby Lobby and Mardel face a distinct and formidable challenge: a dearth of legal precedent that for-profit, secular corporations have rights under RFRA or the Free Exercise Clause. To overcome this obstacle, the plaintiffs attribute the beliefs of the Greens to the corporations and ignore the corporate form.

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In contrast, the Greens start on more solid ground with respect to RFRA and the Free Exercise Clause. No one disputes that, as natural persons, the Greens have free exercise rights. Their distinct challenge is to demonstrate that the Regulation imposed on the corporations also burdens the Greens’ exercise of religion. To do so, they must first show they have standing to assert their free exercise rights and, if they do, demonstrate that the Regulation substantially burdens their exercise of religion.
Each set of plaintiffs must show that the district court abused its discretion when it denied their request for a preliminary injunction because they could not meet their burden to demonstrate a substantial likelihood of success on the merits. See Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir. 2007). With the plaintiffs’ burden in mind, I conclude that the district court did not abuse its discretion as to the corporate plaintiffs, Hobby Lobby and Mardel, but would remand for further consideration of the Greens’ request for a preliminary injunction on their RFRA claim.
As to the corporate plaintiffs, I agree with Chief Judge Briscoe that they did not meet their burden to show that RFRA applies to them. Their briefs lack adequate supporting precedent, and the record lacks evidence of how Hobby Lobby and Mardel hold and exercise religious beliefs in conflict with the Regulation. Also, I am thus far unconvinced that for-profit, secular corporations can so easily seize upon the religious beliefs of their owners to demonstrate a corporate religious conviction. The structural barriers of corporate law give me pause about whether the plaintiffs can have their corporate veil and pierce it too.
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In contrast to Chief Judge Briscoe, however, I am not prepared to conclude once
and for all that RFRA or the Free Exercise Clause provides no protection to any for-profit
corporation. The legal and factual arguments have not been sufficiently developed to
provide a definitive answer. Up until the recent court challenges to the Regulation, there
is little or no case authority on whether a for-profit corporation has free exercise rights.
We should not attempt a final answer on such a novel and significant question until we
have to, and we do not have to at this early stage of this case. The circumstances in
which this issue of first impression comes to us counsel against deciding it, other than to
say that the plaintiffs have not met their burden at this point.
As to the Greens, the threshold issue is whether they have standing to assert their
rights under RFRA and the Free Exercise Clause. I think they do. I also agree with the
Greens that the district court failed to address their precise burden under RFRA. It
should do so on remand.
In accordance with the foregoing, my analysis of the district court’s preliminary
injunction ruling begins with the corporate plaintiffs’ RFRA claim and then proceeds to
the Greens’ RFRA claim. I end with a brief discussion of why the plaintiffs have not shown they are entitled to a preliminary injunction on their Free Exercise Clause claim.1
1 I address whether the plaintiffs should receive preliminary relief on their Free Exercise Clause claim for two reasons. First, because I would affirm on Hobby Lobby’s and Mardel’s RFRA claim and remand the Greens’ RFRA claim, the district court would need to know where we stand on its earlier Free Exercise Clause preliminary injunction ruling. Second, consistent with avoidance of novel constitutional questions, see Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 467 U.S. 138, 157 (1984), we need not decide whether the Free Exercise Clause applies to for-profit corporations, an issue of first impression, by instead addressing the more conventional
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DISCUSSION I. THE CORPORATIONS’ RFRA CLAIM
Hobby Lobby and Mardel seek a preliminary injunction, asserting that the Regulation violates their rights under RFRA. I agree with much of Sections I and II in Chief Judge Briscoe’s separate opinion, in which she raises serious concerns about the corporations’ entitlement to RFRA protection. In addition, I do not think the corporate plaintiffs have demonstrated they can so easily disregard the corporate form and assume the Greens’ religious beliefs. Accordingly, I do not think the district court abused its discretion in holding that Hobby Lobby and Mardel failed to show they are substantially likely to succeed on the merits of their RFRA claim.
Nevertheless, I would stop at concluding that the plaintiffs have not met their preliminary injunction burden and would not foreclose the issue of RFRA coverage for secular, for-profit corporations from future consideration. Prudential considerations of judicial restraint take me to this position.
A. Plaintiffs’ Failure to Meet Preliminary Injunction Burden on Law and Facts Chief Judge Briscoe raises serious concerns about the majority’s analysis and
conclusions. These concerns are sufficient to conclude that the district court did not abuse its discretion in denying a preliminary injunction to Hobby Lobby and Mardel.
I agree with the district court that our usual preliminary injunction standard applies because the plaintiffs seek relief that would “stay governmental action taken in the public
question of whether the Regulation is neutral, generally applicable, and rationally based. See Section III, infra.
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interest pursuant to a statutory or regulatory scheme.” Nova Health Sys. v. Edmondson,
460 F.3d 1295, 1298 n.6 (10th Cir. 2006). Accordingly, the plaintiffs “must show that
four factors weigh in [their] favor: (1) [they are] substantially likely to succeed on the
merits; (2) [they] will suffer irreparable injury if the injunction is denied; (3) [their]
threatened injury outweighs the injury the opposing party will suffer under the injunction;
and (4) the injunction would not be adverse to the public interest.” Awad v. Ziriax, 670
F.3d 1111, 1125 (10th Cir. 2012) (quotations omitted). The district court focused on the
“substantially likely to succeed” factor.
RFRA itself contains no express indication that it covers secular, for-profit
corporations. See generally 42 U.S.C. §§ 2000bb-2000bb-4. The majority relies on the
Dictionary Act, which provides that corporations are persons “unless the context
indicates otherwise.” 1 U.S.C. § 1. At least some of the context surrounding RFRA’s
enactment does indicate otherwise: (1) no court decision recognizing free exercise rights for secular, for-profit corporations, see Briscoe Op. at 9-12;2 (2) no federal statute
recognizing for-profit corporations as religious organizations; and (3) no
2 “Context” for purposes of the Dictionary Act includes “the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts.” Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 199 (1993). In considering statutory text, if “the plain meaning . . . is unclear, we turn to the ‘legislative environment’ . . . searching for an indicia of congressional intent at the time the statute was enacted.” United States v. Doe, 572 F.3d 1162, 1169 (10th Cir. 2009) (quotations omitted). RFRA itself guides us to consider free exercise case law decided before its enactment. The text refers to Supreme Court decisions, including in the statute’s description of findings and purpose. See, e.g., § 2000bb(a)-(b). Indeed, “Congress enacted RFRA in direct response to the Court’s decision in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).” City of Boerne v. Flores, 521 U.S. 507, 512 (1997).
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acknowledgement that granting for-profit corporations such coverage could allow them to
challenge a wide swath of federal laws governing employers’ obligations to employees.3
To obtain a preliminary injunction “the right to relief must be clear and
unequivocal.” Nova Health Sys., 460 F.3d at 1298 (quotations omitted). Given the
uncertainty regarding whether the corporate plaintiffs are covered by RFRA, they have
not met their burden to clearly and unequivocally show that they are substantially likely
to succeed on the merits.
I also share Chief Judge Briscoe’s concerns that the plaintiffs have provided
almost no evidence to support many of the allegations in their complaint. In particular,
they have not provided sufficient facts about specific alleged religious beliefs of the
corporations with respect to the contraceptives at issue here or how those beliefs are
defined and exercised by the corporations. The plaintiffs also provided few detailed facts
and no supporting evidence concerning their employee health care policies and practices,
3 As Chief Judge Briscoe notes, granting RFRA coverage to for-profit corporations opens the door to challenges to federal statutes such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and various immigration laws. If the majority is correct that Congress intended to grant free exercise rights to for-profit corporations under RFRA, we would expect to find evidence in the legislative record that Congress addressed, or at least discussed, these consequences. The legislative record contains no such evidence. See Briscoe Op. at 1213.
The majority attempts to answer this concern, in part, by suggesting that the government has a compelling interest in uniform enforcement of the FLSA. Maj. Op. at 55 n.16. But the answer to this question is far from clear. Neither the Supreme Court nor this circuit has held that uniform enforcement of FLSA is a compelling government interest or that its application would satisfy the least restrictive alternative requirement in a RFRA challenge. Moreover, many of the reasons the majority cites for concluding that the Regulation fails strict scrutiny would apply equally to the FLSA and to other federal laws, including those mentioned above.
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including how they are managed and precisely how they affect the corporations’ religious beliefs.4
This evidence vacuum may explain why the plaintiffs paint their RFRA claim with
a broad brush, pressing us to provide expansive answers to abstract legal questions. The
allegations in the complaint suggest that Hobby Lobby and Mardel have features that
could set them apart from other for-profit businesses and even from each other, but the
plaintiffs provide no evidence in support. The record does not allow meaningful
consideration of whether RFRA applies to either of the two plaintiff corporations.
B. Disregarding the Corporate Form
A threshold question is how Hobby Lobby and Mardel hold and exercise religious
beliefs, including the specific beliefs at issue here. The majority and the plaintiffs
attempt to bridge this gap by ignoring the corporate form and imputing the religious beliefs of the Greens to the corporations.5 But they fail to contend with corporate law
that recognizes legal distinctions between corporations and shareholders. See New
Colonial Ice Co. v. Helvering, 292 U.S. 435, 442 (1934) (“As a general rule a corporation
4 The plaintiffs have failed, for example, to provide the district court with complete information about the financial strain they would bear if they did not provide health care insurance coverage to their employees. They allege that they would face a penalty of $26 million but do not allege or prove the offsetting expenses they would save. See Maj. Op. at 54. These facts are relevant to substantial burden and other preliminary injunction factors.
5 For example, the majority asks, “Where did Hobby Lobby and Mardel lose their Free Exercise rights?” Maj. Op at 45 n.12. But this begs the question of whether these entities acquired such rights. Have Hobby Lobby and Mardel shown clearly and unequivocally that it is substantially likely they have such rights?
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and its stockholders are deemed separate entities.”); Sipma v. Mass. Cas. Ins. Co., 256
F.3d 1006, 1010 (10th Cir. 2001) (“[A] corporation is treated as a legal entity separate
from its shareholders.” (quotations omitted)).
Although courts generally recognize corporations and their shareholders as distinct
legal entities, in limited circumstances courts “disregard the corporate form” or “pierce
the corporate veil.” Floyd v. IRS, 151 F.3d 1295, 1298 (10th Cir. 1998). 6 This is done
“only reluctantly and cautiously,” NLRB v. Greater Kan. City Roofing, 2 F.3d 1047, 1051
(10th Cir. 1993), and the Supreme Court has called it a “rare exception.” Dole Food Co.
v. Patrickson, 538 U.S. 468, 475 (2003). For instance, “Oklahoma has long recognized
6 The issue of piercing the corporate veil has surfaced in other RFRA challenges to the Regulation. See, e.g., Grote v. Sebelius, 708 F.3d 850, 858 (7th Cir. 2013) (Rovner, J., dissenting) (stating that individual plaintiffs did not make a “piercing the corporate veil” argument to attribute corporate expenditures for the health care plan to themselves); Conestoga Wood Specialties, Inc. v. Sebelius, No. 13-1144, 2013 U.S. Dist. LEXIS 2706, at *14-15 (3d Cir. Feb. 7, 2013) (Garth, J., concurring) (rejecting the corporate plaintiff’s claim “that it should be construed as holding the religious beliefs of its owners,” stating, “‘It would be entirely inconsistent to allow [individual plaintiffs] to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose of challenging these regulations.’”) (quoting Conestoga Wood Specialties, Inc. v. Sebelius, No. 12-6744, 2013 U.S. Dist. LEXIS 4449, 2013 WL 140110, at *8 (E.D. Pa. Jan. 11, 2013)); Gilardi v. Sebelius, No. 13-104(EGS), 2013 WL 781150, at *7 (D.D.C. Mar. 3, 2013) (using the same quote and agreeing with Conestoga); Briscoe v. Sebelius, No. 13cv-00285-WYD-BNB, 2013 WL 755413, *6 (D. Colo. Feb. 27, 2013) (same); Korte v. U.S. Dep’t of Health & Human Servs., No. 3:12-CV-01072-MJR, 2012 WL 6553996, at *11 (S.D. Ill. Dec. 14, 2012) (“The fact that a ‘corporate veil’ (regardless of how thin) stands between the [individual owners] and [the corporation], and another legal ‘veil’ is between [the corporation] and the group health plan, cannot be ignored.”) (denying motion for preliminary injunction), injunction pending appeal granted by, Korte v. Sebelius, No. 12-3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012). The court in Gilardi also said it was “troubled by plaintiffs’ apparent disregard of the corporate form in this case” and “decline[d] to disregard the corporate form by imputing the religious belief of the Gilardis to the corporations they own.” 2013 WL 781150, at *4, 6. In Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012), the court asked, “Is it possible to ‘pierce the veil’ and disregard the corporate form in this context?” Id. at 1296.
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the doctrine of disregarding the corporate entity in certain circumstances[,] . . . under the
legal doctrines of fraud, alter ego and when necessary to protect the rights of third
persons and accomplish justice.” Fanning v. Brown, 85 P.3d 841, 846 (Okla. 2004); see
also Luckett v. Bethlehem Steel Corp., 618 F.2d 1373, 1378-80 (10th Cir. 1980); Smoot v.
B & J Restoration Servs., Inc., 279 P.3d 805, 813 (Okla. Ct. Civ. App. 2012).
Many jurisdictions apply an alter ego theory in veil piercing cases. See Skull
Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1251 (10th Cir. 2004)
(applying Utah law to ordinary veil piercing claim); Floyd, 151 F.3d at 1298 (applying Kansas law to reverse veil piercing claim). 7 In analyzing whether an alter ego theory
justifies veil piercing under federal law, this court asks (1) “was there such unity of
interest and lack of respect given to the separate identity of the corporation by its
shareholders that the personalities and assets of the corporation and the individual are
indistinct,” and (2) “would adherence to the corporate fiction sanction a fraud, promote
injustice, or lead to an evasion of legal obligations.” Greater Kan. City Roofing, 2 F.3d
at 1052.
7 Ordinary veil piercing occurs when external plaintiffs seek to hold shareholders liable for the corporation’s debts. See Floyd, 151 F.3d at 1298. The plaintiffs’ claims would likely involve so-called reverse veil piercing, in which the corporation itself or a controlling insider asks a court to disregard the corporate form to obtain some advantage, avoid liability, or claim legal protections not otherwise available. See id.; Love v. Flour Mills of Am., 647 F.2d 1058 (10th Cir. 1981) (declining to apply reverse veil pierce under Oklahoma law but leaving open the possibility in other circumstances); Cargill, Inc. v. Hedge, 375 N.W. 2d 477 (Minn. 1985) (allowing reverse veil pierce in bankruptcy action to recognize homestead exception for home owned by a corporation but occupied by shareholder family); see also Gregory S. Crespi, The Reverse Pierce Doctrine, 16 J. Corp. L. 33, 37 (1991).
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Perhaps Hobby Lobby, Mardel, and the Greens can make a successful argument for disregarding the corporate form and sharing religious beliefs. But courts require evidence to disregard the corporate form, and the plaintiffs have presented none. Yet they filed their suit and immediately asked the district court to relieve the corporations of their legal obligations to their employees under the Regulation, even when we have repeatedly said that “a preliminary injunction is an extraordinary remedy, and thus the right to relief must be clear and unequivocal.” Nova Health Sys., 460 F.3d at 1298 (alterations omitted) (quotations omitted).
C. Judicial Restraint Although I conclude that the district court did not abuse its discretion in denying the corporate plaintiffs’ RFRA claim, I do not think we need to decide as a final matter whether for-profit, secular corporations have RFRA or Free Exercise Clause rights. The corporate plaintiffs’ failure to meet their burden of showing they are substantially likely to succeed on the merits is a sufficient basis to affirm the district court’s order. Moreover, this court is being asked to answer whether RFRA covers for-profit, secular corporations in an expedited process, at a preliminary stage of the case, and without the benefit of a full record, a final judgment from the district court, or prior consideration from a panel of this court. The Supreme Court has not addressed this question, and few courts have even considered it. The issue is complex and involves critical areas of statutory and constitutional law. The answer will profoundly affect the relationship between the government and potentially millions of business entities in our society in ways we can only begin to anticipate. These circumstances are far from
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optimal to decide a heretofore unexplored question, yet the majority does so broadly and
without hesitation.
To understand the meaning of RFRA requires delving into the scope and meaning
of the Free Exercise Clause. See 42 U.S.C. §§ 2000bb (describing RFRA’s purpose and
meaning in terms of the Free Exercise Clause).8 “If there is one doctrine more deeply
rooted than any other in the process of constitutional adjudication, it is that we ought not
to pass on questions of constitutionality . . . unless such adjudication is unavoidable.”
United States v. Cusumano, 83 F.3d 1247, 1250-51 (10th Cir. 1996) (quoting Spector
Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944)). Because we are at the
preliminary injunction stage, where emphasis should be on the plaintiffs’ burden and the
evidence presented, I do not think adjudication of the RFRA coverage issue is
unavoidable. In these circumstances, we ought to exercise the “fundamental rule of
judicial restraint.” Three Affiliated Tribes of the Fort Berthold Reservation v. Wold
8 The majority’s attempt at using history to support its conclusion illustrates the uphill burden of showing clearly and unequivocally a substantial likelihood that RFRA covers for-profit corporations. Not surprisingly, opinions differ about the history surrounding the adoption of the Free Exercise Clause. The Supreme Court’s limited attempts to explore that history have taken different directions. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 575-77 & n.6 (1993) (Souter, J., concurring). Professor McConnell’s article explores multiple possible explanations for the inclusion of “free exercise of religion” rather than “liberty of conscience” in the First Amendment. See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1488-1500 (1990); but see Philip A. Hamburger, A Constitutional Right of Religious Exemption: A Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992) (reviewing and criticizing Professor McConnell’s general conclusions regarding original meaning of the Free Exercise Clause). If history is to be our guide, neither the plaintiffs nor the majority have marshaled the evidence or fully canvassed the scholarship.
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Engineering, 467 U.S. 138, 157 (1984). I am therefore reluctant to hold that all, some, or no for-profit corporations are entitled to RFRA or Free Exercise Clause protection.
* * * Chief Judge Briscoe should not have to remind us that the plaintiffs need to do more than file a complaint and a motion to receive a preliminary injunction. They must earn it by meeting their “clear and unequivocal” burden of persuasion. They have not done so as to Hobby Lobby and Mardel. I would therefore affirm the district court’s denial of the preliminary injunction as to the corporate plaintiffs’ RFRA claim.
II. THE GREENS’ RFRA CLAIM Unlike Hobby Lobby and Mardel, the Greens do not have to convince us that they have RFRA rights. It is clear they do. The obstacle they must overcome is whether they can claim that the Regulation violates their RFRA rights even though the Regulation applies to the corporate plaintiffs. I would hold that the Greens have standing to pursue their RFRA claim because they have shown the Regulation injures them in a direct, personal way. I would then remand to the district court with instructions to reconsider their request for a preliminary injunction in light of a proper understanding of the Greens’ claim that the Regulation substantially burdens their religious beliefs.
A. The Greens Have Standing The Greens must first convince us they have standing to challenge the Regulation under RFRA.
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The standing “inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975); see also Valley Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 471 (1982). As “[t]he party invoking federal jurisdiction,” the Greens “bear[] the burden of establishing [their standing] . . . in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citations omitted). Thus, “at the preliminary injunction stage, [the Greens] must make a ‘clear showing’” that they have standing. Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). 1. Article III Standing
“[T]he core component of standing is an essential and unchanging part of the caseor-controversy requirement of Article III.” Lujan, 504 U.S. at 560. This “irreducible constitutional minimum” is established by three elements. Id. The Greens must demonstrate “(1) that [they have] suffered an injury in fact; (2) that the injury is ‘fairly traceable to the challenged [regulation];’ and (3) that it is ‘likely’ that ‘the injury will be redressed by a favorable decision.’” Awad, 670 F.3d at 1120 (quoting Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011)).
The crux of the Greens’ Article III standing concerns the first element, injury in fact. An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan,
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504 U.S. at 560 (citations omitted) (quotations omitted). Here, the Greens allege they are
injured because by July 1, 2013, they must either manage their corporations to comply
with the Regulation, and thereby violate their religious beliefs, or subject the corporations
to fines for noncompliance. At the very least, they have shown their alleged injury is
imminent. But they must also show they have suffered an injury that goes to a “legally
protected” interest and that their injury is “concrete and particularized.” Id.
“Determining whether a plaintiff has alleged a sufficient injury in fact is often not
difficult,” but when the alleged injury is neither physical nor economic, it may be more challenging. Awad, 670 F.3d at 1120.9 Although “standing may be predicated on
noneconomic injury,” not every noneconomic injury is sufficient. Valley Forge, 454 U.S.
at 486. For example, “the psychological consequence presumably produced by
observation of conduct with which one disagrees is not a sufficient injury in fact.” Green
v. Haskell Cnty. Bd. of Comm’rs, 568 F.3d 784, 793 (10th Cir. 2009) (quotations
omitted). A plaintiff’s grievance must be more than a mere “‘religious difference’” that
is “‘a generally available grievance about government,’” Hein v. Freedom From Religion
Found., Inc., 551 U.S. 587, 601 (2007) (quoting Doremus v. Bd. of Educ. of Borough of
9 As Judge Gorsuch’s concurrence notes, Hobby Lobby and Mardel face penalties if they do not comply with the Regulation. These penalties would reduce the corporations’ value, and the resulting economic injury would affect the Greens as shareholders. Such an injury ordinarily satisfies Article III’s injury requirement. See Franchise Tax Bd. of Cal. v. Alcan Aluminium Ltd., 493 U.S. 331, 336 (1990); Grubbs v. Bailes, 445 F.3d 1275, 1280 (10th Cir. 2006). Even if the Greens were not shareholders, as Chief Judge Briscoe suggests, see Briscoe Op. at 32, no one disputes that the Greens are exposed to a financial injury, which is sufficient for Article III standing. See Alcan, 493 U.S. at 665 (analyzing whether injury to a corporation will cause “actual financial injury” to those with an ownership interest). Nevertheless, I understand the Greens’ primary alleged injury to be interference with their religion.
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Hawthorne, 342 U.S. 429, 434 (1952), and Lujan, 504 U.S. at 573-74), “hurt feelings,”
Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803, 807 (7th Cir. 2011), or
even a “deep and genuine offense” to a particular law or conduct, Catholic League for
Religious & Civil Rights v. City & Cnty. of San Francisco, 624 F.3d 1043, 1062 (9th Cir. 2010) (en banc) (Graber, J., dissenting).10
The Greens assert an injury to their free exercise rights, which certainly constitute
a legally protected interest. See Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). To
establish an injury to this legally protected interest, the Greens must show that the
challenged government action infringes on their “particular religious freedoms.” Sch.
Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 224 n. 9 (1963). They have done
so.
The Greens contend their religious beliefs require them to refrain from any conduct or action that would assist others in using particular contraceptives.11 The
Greens’ roles as managers of Hobby Lobby and Mardel place them between two
10 These examples come from cases involving claims brought under the Establishment Clause, while the Greens’ claims involve religious exercise. We know from case law that requirements for standing under the Establishment Clause and the Free Exercise Clause differ, but these cases are nevertheless instructive.
11 The Greens’ statements in their verified complaint are sufficient evidence of their individual religious beliefs. See Taft v. Vines, 83 F.3d 681, 685 n.* (4th Cir. 1996) (“[A] verified complaint is the equivalent of an . . . affidavit . . . when the allegations . . . are based on personal knowledge.”); see also Sheinkopf v. Stone, 927 F.2d 1259, 1263 (1st Cir. 1991) (verified complaint equivalent to affidavit to the extent it is based on matters of personal knowledge); Runnels v. Rosendale, 499 F.2d 733, 734, n.1 (9th Cir. 1974) (same). (We note that the complaint does not specify the corporations’ alleged religious beliefs, but even if it did, there is no legal precedent to guide us in how a corporate entity could establish and define legally recognized religious beliefs.)
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imminent, concrete, and particularized injuries: the Regulation requires them (1) to violate this religious obligation by implementing their corporations’ compliance with the Regulation or (2) to disregard the Regulation and risk the financial future of the corporations they own and operate. The Regulation causes this injury, and an exemption under RFRA or the Free Exercise Clause would redress it.
The Government argues that the Greens have not shown an injury in fact because only the corporations are subject to the Regulation and its penalties for noncompliance. But this does not preclude the Greens’ satisfaction of the injury requirement. Even an indirect injury may be an injury for Article III purposes. See Warth, 422 U.S. at 505 (“[T]he indirectness of the injury does not necessarily deprive the person harmed of standing to vindicate his rights.”). And plaintiffs may suffer injury from the enforcement of a law or regulation even if it does not directly apply to them. See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).
“‘At bottom, the gist of the question of standing is whether petitioners have such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.” Awad, 670 F.3d at 1120 (quoting Massachusetts v. E.P.A., 549 U.S. 497, 517, 127 (2007)). The Greens’ RFRA and Free Exercise claims satisfy this requirement. 2. Prudential Standing
Even when Article III’s standing requirements are satisfied, there are “other limits on the class of persons who may invoke [federal courts’] decisional and remedial powers.” Warth, 422 U.S. at 499. Such prudential standing requirements include the
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“shareholder standing rule,” which provides that “conduct which harms a corporation
confers standing on the corporation, not its shareholders.” Bixler v. Foster, 596 F.3d 751,
756 (quoting Franchise Tax Bd. of Cal. v. Alcan Aluminium Ltd., 493 U.S. 331, 336
(1990) (“Alcan”)). A shareholder may not bring claims for injuries that are “derivative”
of, or indistinct from, the corporation’s injury. Id. at 758.
Because the Regulation applies to Hobby Lobby and Mardel, there is a question of
whether the Greens’ alleged injury is derivative. This issue arises because the Greens
emphasize their shareholder status, and the Greens do not help matters because they insist
that their interests, burdens, and injuries are identical to the corporations’.12 Nonetheless,
I do not believe the shareholder standing rule applies because the Greens have alleged an
injury that is direct and personal.13
12 The plaintiffs’ appellate brief describes the corporations throughout as a “family business” and the Greens as “owners.” See Aplt. Br. at 1-2, 20, 22, 33-36. The plaintiffs’ complaint and arguments acknowledge no distinction between the corporate plaintiffs and the Greens, and they continuously attribute the Regulation’s requirements and penalties and the religious beliefs at issue interchangeably to “the Greens,” “Hobby Lobby,” and “Plaintiffs.” E.g., Complaint at 24, 27-39 (myriad references to the “Plaintiffs’” obligations under the Regulation and “Plaintiffs’ religious beliefs”); see also, e.g., Aplt. Br. at 5 (The Regulation “forces the Greens and Hobby Lobby to violate their religious beliefs…”); id. at 1 (“If the Greens do not comply . . . they face massive fines.”); id. at 18, 22, 27. As discussed earlier, this ignores that “a corporation is regarded as a legal entity, separate and distinct from the individuals comprising it.” Fanning, 85 P.3d at 846. The Greens have failed to develop a legal or factual basis to allow the court to disregard the corporate form.
13 My conclusions on the Greens’ standing are generally consistent with Judge Gorsuch’s concurrence. I do not join his concurrence for several reasons. I do not believe we can conclude at this point that the Greens are entitled to relief. Because this court raised the standing issue and asked the Government to brief it, I do not think we should decline to consider the Government’s prudential standing arguments. And I am
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a. Shareholder standing exception: direct and personal injury
A well-established exception to the shareholder standing rule is that “a shareholder
with a direct, personal interest in a cause of action [may] bring suit even if the
corporation’s rights are also implicated.” Alcan, 493 U.S. at 336; see also Grubbs v.
Bailes, 445 F.3d 1275, 1280 (10th Cir. 2006). Purely financial injuries to a shareholder’s
corporate investment are typically derivative and do not fall under this exception. E.g.,
Bixler, 596 F.3d at 758 (alleged injury—financial loss from corporation’s RICO
violations—was derivative because it was based solely on plaintiffs’ status and rights as
shareholders). This is true even when the defendant’s alleged wrongdoing involves a
civil rights violation. E.g., Diva’s Inc. v. City of Bangor, 411 F.3d 30, 42 (1st Cir. 2005)
(shareholder’s § 1983 claim barred because alleged injuries were purely financial and
not convinced that RFRA forecloses consideration of prudential standing for the reasons Judge Bacharach has raised in his concurring opinion. Bacharach Op. at 7-8.
I disagree, however, with Judge Bacharach’s conclusion that the shareholder standing rule prevents the Greens’ claims, for reasons described in this section. Additionally, I do not agree that the Greens’ fiduciary duties to the corporations as officers and directors determine whether their free exercise injury is derivative. Shareholders do not owe the same fiduciary duties to corporations that officers and directors do. See, e.g., In re Midway Games, Inc., 428 B.R. 303, 313, 319 (Bankr. Del. 2010) (officers and directors owe a duty of loyalty and good faith to advance the interests of the corporation, while shareholders are entitled to advance their own economic interests). The fiduciary duties to which Judge Bacharach refers are separate from the Greens’ shareholder status and cannot resolve the shareholder standing issue. Even if these fiduciary duties were relevant to standing, assuming they place added pressure on the Greens to comply with the Regulation and thereby violate their religious obligations, this would strengthen the argument that their injury is direct and personal and not derivative of any injury to the corporations.
Chief Judge Briscoe suggests this analysis would create a “management standing” rule. Briscoe Op. at 33. No such rule is proposed. The standing analysis in this section applies well-established Article III and prudential standing law to the facts of this case.
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were identical to the corporation’s); Potthoff v. Morin, 245 F.3d 710, 717-18 (8th Cir. 2001) (same); Smith Stzer & Sons, Inc. v. South Carolina Procurement Review Panel, 20 F.3d 1311, 317-18 (4th Cir. 1994) (same).
But even though shareholders may suffer derivative financial harm, they may also separately suffer a direct and personal injury. In Alcan, a foreign corporation challenged a state franchise tax imposed on its subsidiary corporation. 493 U.S. at 336-37. At issue was whether the plaintiff’s injury was merely the “decline in the value of [the shareholder’s] ownership interest,” in which case it would have been derivative. Id. at 337. The Supreme Court dismissed the claim on other grounds, but it left open the possibility that a separate injury—namely, a burden on the shareholder’s decisions about “participation in the American economy”—would satisfy prudential standing requirements. Id. at 338.
We applied Alcan in Grubbs, where the shareholder of a corporation that held land for shareholder use sued a sheriff’s department for failing to protect the land against trespassers. 445 F.3d at 1277. The shareholder retained an individual leasehold in the property, giving him a state law right against trespass. Id. at 1280. His injury was to a “distinct legally recognized interest,” and therefore was direct and personal and “sufficient to satisfy the prudential standing principles in Alcan.” Id. at 1277, 1280.14
14 Another case from this circuit came to a different conclusion. In Guides Ltd. v. Yarmouth Group Property Management., Inc., 295 F.3d 1065 (10th Cir. 2002), a corporation brought a § 1981 claim for race discrimination, and the corporation’s sole shareholder added an individual claim for emotional distress. We rejected the individual claim on prudential standing grounds. But Guides did not apply the Alcan rule. It relied on In re Stat-Tech Int’l Corp., 47 F.3d 1054 (10th Cir. 1995), a Tenth Circuit case that
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(As in Alcan, we ultimately rejected the claim on other grounds without “definitively
resolv[ing]” the shareholder standing issue. Id. at 1280.)
b. Direct and personal injury exception applies to the Greens The Greens’ injury is direct and personal regardless of whether the corporations
are covered by RFRA. If the corporations have no RFRA rights, the Greens’ alleged free
exercise injury is not derivative of a corporate free exercise injury. If, on the other hand,
the corporations do possess RFRA rights, a bit more analysis is required.
Although the Greens may suffer financial losses arising from non-compliance with
the Regulation, their core alleged injury is religious. The Greens claim that the
Regulation injures them directly and personally because it requires them to take
affirmative action contrary to their religious beliefs: they must implement coverage for
the contraceptives at issue.
The Greens are not only shareholders, they are also directors and officers of the
corporations. They own and manage Hobby Lobby and Mardel and will be directly and personally involved in implementing the Regulation.15 The situation might be different,
applied a “different shareholder standing exception” that “does not look for direct injury distinct from a shareholder’s derivative harm; it looks for harm to the plaintiff as a shareholder but requires that it be unique in some way from that suffered by shareholders generally.” Grubbs, 445 F.3d at1280 n.2 (10th Cir. 2006) (summarizing Guides); see also In re Stat-Tech, 47 F.3d at 1059. We have most often applied this second shareholder standing exception in cases arising under state law where minority shareholders claim financial injuries from actions of the corporation or a majority shareholder. E.g., Combs v. PriceWaterhouseCoopers LLP, 382 F.3d 1196, 1199-1200 (10th Cir. 2004); In re Stat-Tech, 47 F.3d at 1059.
15 This point answers Judge Hartz’s hypothetical about the rabbi who owns a kosher-matzo business. The rabbi retains his RFRA rights when he incorporates his
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for example, for a shareholder who has no role in managing the corporation and is unlikely to be involved in any of the details of the corporation’s health plan. Conversely, a human resources manager who does not also serve as shareholder, officer, or director could be relieved of responsibility connected to the Regulation, perhaps by requesting accommodation under Title VII. See Rodriguez v. City of Chicago, 156 F.3d 771, 774-78 (7th Cir. 1998) (police officer’s religious beliefs opposing abortion entitled him to reasonable accommodation under Title VII to be excused from assignment guarding health clinic where abortions were performed).
The Greens’ injury is not purely financial. At its core, their injury is religious. Like the shareholder in Grubbs, they assert rights that are independent of their shareholder status. Whether or not their RFRA claim prevails, the Greens have standing to have the claim heard in federal court.
B. The Greens’ RFRA Claim Should Be Remanded The next issue is whether the district court abused its discretion in concluding that the Greens failed to show a substantial likelihood of success on the merits of their RFRA claim. The court determined that the burden on their religious exercise was not substantial. Because I conclude the court misunderstood the nature of the Greens’ burden, I would remand for reconsideration of their RFRA claim. The district court concluded that the Greens’ RFRA claim was not substantially likely to succeed because the burden on their religious exercise was “indirect and
business. Conversely, his corporation does not necessarily acquire his RFRA rights by virtue of his religious beliefs, though, as noted earlier, I would leave that question open for now.
- 21 -

Case 5:12-cv-01000-HE Document 65 Filed 06/27/13 Page 162 of 165 Appellate Case: 12-6294 Document: 01019080755 Date Filed: 06/27/2013 Page: 162
attenuated” and therefore not substantial. Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012). It defined the burden as the possibility that “funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [their] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff’s religion.” Id. (quoting O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1159 (E.D. Mo. 2012)). This statement misconstrues the Greens’ religious objection.
The Greens acknowledge that their religious beliefs are not “even implicated” by their employees’ independent medical choices. Aplt. Br. at 27. But they assert “that their faith demands they refrain from participating in, providing access to, paying for, training others to engage in, or otherwise supporting” the use of particular contraceptives. Id. (quotations omitted). The district court abused its discretion by applying its substantial burden analysis to an incorrectly understood religious burden. See Korte v. Sebelius, No. 12-3841, 2012 WL 6757353, at *3 (7th Cir. Dec. 28, 2012) (“The religious-liberty violation at issue here inheres in the coerced coverage of contraception . . . not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.”). The burden would arise from having to provide coverage in contravention of the Greens’ religious beliefs.
As previously explained, the alleged burden on the Greens’ religious exercise constitutes an injury for standing purposes. But to prevail on the merits of a RFRA claim, the Greens must show a substantial burden. The district court did not conduct the
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Case 5:12-cv-01000-HE Document 65 Filed 06/27/13 Page 163 of 165 Appellate Case: 12-6294 Document: 01019080755 Date Filed: 06/27/2013 Page: 163
proper analysis due to its erroneous view of the burden on the Greens’ exercise of religion. I therefore would remand to the district court to reconsider the substantial burden issue. Depending on the outcome of that analysis, the court may also need to address whether the Regulation satisfies strict scrutiny and also consider the remaining preliminary injunction factors with respect to the Greens’ RFRA claim.
III. FREE EXERCISE CLAUSE CLAIM The district court did not abuse its discretion in denying a preliminary injunction for the plaintiffs’ Free Exercise claim because they have not clearly and unequivocally shown that they are substantially likely to succeed on the merits. “[T]he ‘right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” HosannaTabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012) (quoting Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990)). For this reason, the Supreme Court has concluded that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). Rather, “[g]overnment actions that stem from ‘neutral’ rules of ‘general applicability’ are subject to rational basis review.” Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 52 (10th Cir. 2013) (quoting City of Hialeah, 508 U.S. at 531).
- 23 -

Case 5:12-cv-01000-HE Document 65 Filed 06/27/13 Page 164 of 165 Appellate Case: 12-6294 Document: 01019080755 Date Filed: 06/27/2013 Page: 164
The Regulation is a neutral rule of general applicability “so long as its object is something other than the infringement or restriction of religious practices.” Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 649-50 (10th Cir. 2006); see also Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1233 (10th Cir. 2009); AxsonFlynn v. Johnson, 356 F.3d 1277, 1294 (10th Cir. 2004) (“A rule that is discriminatorily motivated and applied is not a neutral rule of general applicability.”). The Regulation was enacted to promote women’s access to health care—a purpose entirely unrelated to religion. And it applies generally to for-profit corporations based on criteria unrelated to its shareholders’ religious views. See Swanson ex rel. Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 698 (10th Cir. 1998) (law is generally applicable because it applies to an activity whether motivated by religious or secular purpose).
Under rational basis review, the Regulation survives a constitutional challenge if it is at least “rationally related to a legitimate government interest.” Corder, 566 F.3d at 1232. The plaintiffs have not argued that the Government’s stated purpose of promoting women’s access to health care is not legitimate, nor have they suggested that the Regulation is not rationally related to this purpose.
The district court did not abuse its discretion in concluding that the plaintiffs have not shown that their Free Exercise Clause claim is substantially likely to succeed on the merits.
CONCLUSION I would (1) affirm the district court’s denial of a preliminary injunction for Hobby Lobby and Mardel on their RFRA claim; (2) conclude that the Greens have standing to
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Case 5:12-cv-01000-HE Document 65 Filed 06/27/13 Page 165 of 165 Appellate Case: 12-6294 Document: 01019080755 Date Filed: 06/27/2013 Page: 165
assert their RFRA and Free Exercise claims; (3) reverse the district court’s holding that the Greens’ RFRA claim is not substantially likely to succeed and remand for reconsideration; and (4) affirm the district court’s denial of a preliminary injunction on the plaintiffs’ Free Exercise Clause claim.
Finally, I concur that the Anti-Injunction Act does not apply to this case.
- 25 -

 
 Case 5:12-cv-01000-HE Document 69 Filed 06/28/13 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

HOBBY LOBBY STORES, INC., et al., )

)

Plaintiffs,

)

vs.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as the Secretary of the United )

States Department of Health and Human )

Services, et al.,

)

)

Defendants.

)

NO. CIV-12-1000-HE

ORDER

This case is before the court on plaintiffs’ Em ergency Application for Ruling on

Pending Preliminary Injunction or in the Alternative Temporary Restraining Order [ Dkt.

#68]. The court, having reviewed the pleadings and heard argum ents from counsel via

telephone conference held this date, herebyGRANTS plaintiffs’ application for a temporary

restraining order pending a hearing on plaintiffs’ motion for preliminary injunction.

The court concludes plaintiffs have made a sufficient showing to warrant the issuance

of a temporary restraining order in the circumstances existing here. Plaintiffs have shown

that 42 U.S.C. § 300gg-13(a)(4) will take effect against the copmanies Monday, July 1, 2013,

triggering significant penalties under 26 U.S.C. §§ 4980D & 4980H, absent intervention by

the court. The Court of Appeals has held that “Hobby Lobby and Mardel have established

a likely violation of RFRA,” 42 U.S.C. §2000bbet seq., and that “establishing a likely RFRA

violation satisfies the irreparable harm factor.” Hobby Lobby Stores, Inc. v. Sebelius, No.

12-6294 (10th Cir. June 27, 2013), slip op. at 65. Plaintiffs have made a sufficient showing

Case 5:12-cv-01000-HE Document 69 Filed 06/28/13 Page 2 of 3
as to the rem aining elements necessary to the issuance of a tem porary restraining order (weighing of the relative harms and whether injunctive relief is in the public interest) pending a further hearing, based on those aspects of plaintiffs’ showing referenced by a plurality of the appellate judges as to those factors.
Accordingly, the defendants, their agents, officers, and em ployees are temporarily ENJOINED and RESTRAINED from any effort to apply or enforce, as to plaintiffs, the substantive requirements imposed in 42 U.S.C. § 300gg-13(a)(4) and at issue in this case, or the penalties relate d thereto, pending a hearing on plaintiffs’ m otion for prelim inary injunction.
Plaintiffs’ motion for preliminary injunction will be heard on July 19, 2013, at 9:00 a.m., in Courtroom No. 304. Absent further order of the court, the hearing will be in the nature of oral argument directed to the sufficiency of the showing previously made by the parties. Any party seeking le ave to offer additional evidence shall do so by m otion and supporting brief filed not later than July 3, 2013. Any response to such a m otion shall be filed by July 10, 2013.
The parties are ORDERED to confer, through counsel, in advance of the hearing to determine whether, in light of the Court of Appe als decision and other pertinent circumstances, an agreed resolution is possible as to the prelim inary relief sought by plaintiffs. The parties should also be prepar ed to address at the hearing an appropriate scheduling order to govern further proceedings in the case.

Case 5:12-cv-01000-HE Document 69 Filed 06/28/13 Page 3 of 3
IT IS SO ORDERED. Dated this 28th day of June, 2013.

 
 Hobby Lobby Stores, Inc. v. Sebelius, Slip Copy (2013)

201 3 WL 3869832 United States District Court,
W.D. Oklahoma.
HOBBY LOBBY STORES, INC., et al., Plaintiffs, v.
Kathleen SEBELIUS, in her official capacity as the Secretary of the United States Department of Health and Human Serv ices, et al., Defendants.
No. CIV –1 2–1 000–HE. | July 1 9, 201 3.
Attorneys and Law Firms
Charles E. Geister, III, Derek B. Ensminger, Hart zog Conger Cason & Neville, Oklaho ma City, OK, Adele A. Keim, Eric S. Baxter, Lo ri H. W indham, Mark L. Rienzi, Stuart K. Duncan, The Becket Fund for Relig ious Liberty, Washington, DC, for Plaintiffs.
Michelle R. Bennett, Washington, DC, for Defendants.
Opinion
ORDER
JOE HEATON, District Judge.
*1 Plaintiffs, Hobby Lobby Stores, Inc., Mardel, Inc., David Green, Barbara Green, Steve Green, Mart Green and Darsee Lett sued Kathleen Sebelius, Secretary of the United States Depart ment of Health and Hu man Services (“HHS”), and other government officials and agencies challenging regulat ions issued under the Patient Protection and Affordable Care Act, Pub.L. No. 111–148, 124 Stat. 119 (2010), as amended by the Heath Care and Education Reconciliat ion Act, Publ. L. No. 111–152, 124 Stat. 1029 (2010) (“A CA”). Plaintiffs claim the preventive services coverage provision of the A CA violates their First Amend ment rights and their rights under the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb et seq.
Plaintiffs filed a mot ion fo r injunctive relief, wh ich the court denied. That decision was reversed by the Tenth Circuit Court of Appeals, wh ich concluded that “Hobby Lobby and Mardel have established a likely violat ion of

RFRA,” 42 U.S.C. § 2000bb et seq., and that “establishing a likely RFRA vio lation satisfies the irreparable harm factor [of the preliminary injunction
test].” Hobby Lobby Stores, Inc. v., Sebelius, ––– F.3d ––––, –––– (10th Cir.2013). The court was directed on remand to consider whether plaintiffs met their burden on
the two remain ing preliminary injunction elements—equitable balancing and whether issuance of an injunction would be in the public interest.1 At the
conclusion of a hearing held th is date, and after considering the parties’ briefs and oral argu ments on these issues, the court determined that plaintiffs’ request for a
preliminary injunction should be granted.

1

A four-judge plurality of the Court of Appeals

concluded that all four preliminary injunction factors

tipped in favor of Hobby Lobby and Mardel and that an

injunction should issue.

With respect to the balance of harms determination, the government’s interest in p roviding Hobby Lobby and Mardel’s 13,000 emp loyees with access to all FDA-approved contraceptive methods, through their emp loyment-based group health plans, is not insignificant. However, the bulk of the approved methods are available to them, unlike a substantial number of other emp loyees whose plans the government has comp letely exempted fro m the contraceptive-coverage requirement of the ACA. If the injunction does not issue, Hobby Lobby and Mardel must either face penalt ies that could conceivably amount to $1.3 million/day or the violation of their newly recognized religious rights, as for-profit corporations, under RFRA. On balance, the court finds the threatened injury to the corporations if the in junction does not issue outweighs the potential harm to the government.
The question of whether plaintiffs have shown that an injunction would not be adverse to the public interest is less clear, as the court must consider which of two competing statutes should be enforced. The rights at issue are statutory, not constitutional, though both RFRA and the ACA implicate rights recognized by the Constitution.
Given the importance of the interests at stake in this case, the fact that the ACA’s requirements raise new and substantial questions of law and public policy, and that substantial litigation as to the mandate at issue here is ongoing around the country, the court concludes there is an overriding public interest in the resolution of the legal
1

Hobby Lobby Stores, Inc. v. Sebelius, Slip Copy (2013)
issues raised by the mandate before Hobby Lobby and Mardel are exposed to the substantial penalties that are potentially applicable. The public interest therefore lies in preserving the status quo until the issues raised by plaintiffs’ claims are resolved.
*2 For these reasons and those announced from the bench, and after giving effect to the decision of the Court of Appeals, the court concludes Hobby Lobby and Mardel have met their burden of showing they are entitled to the issuance of a preliminary in junction. Accordingly, defendants, their agents, officers, and emp loyees are ENJ OINED and RES TRAINED fro m any effo rt to apply or enforce, as to plaintiffs, the substantive

requirements imposed in 42 U.S.C. § 300gg–13 (a)(4) and at issue in this case, or the penalties related thereto, until further order of the court.
As agreed to by the parties, further proceedings in this case are STAYED until October 1, 2013. The government is directed to advise the court if, prior to th at date, it determines it will not seek review of the Tenth Circuit’s decision.
IT IS SO ORDERED.

2

 
 Case 5:12-cv-01000-HE Document 86 Filed 11/26/13 Page 1 of 2 Appellate Case: 13-6215 Document: 01019164121 Date Filed: 11/26/2013 Page: 1

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

Tenth Circuit

FOR THE TENTH CIRCUIT _________________________________
HOBBY LOBBY STORES, INC., et al.,

November 26, 2013
Elisabeth A. Shumaker Clerk of Court

Plaintiffs - Appellees,

v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, et al.,

No. 13-6215 (D.C. No. 5:12-CV-01000-HE)

Defendants - Appellants.

SENATOR ORRIN G. HATCH, et al., Amici Curiae. _________________________________ ORDER _________________________________ This appeal was previously abated pending the outcome of a petition seeking a
writ of certiorari that had been filed with the United States Supreme Court in Sebelius v. Hobby Lobby, Inc., S.C. Case No. 13-354.
The court has been advised that the Supreme Court has granted the Hobby Lobby certiorari petition. The previously ordered abatement in this appeal remains in place. Notwithstanding any prior directives, the next status report in this appeal is due May 12, 2014. However, if there are any developments in the United States Supreme Court that

Case 5:12-cv-01000-HE Document 86 Filed 11/26/13 Page 2 of 2 Appellate Case: 13-6215 Document: 01019164121 Date Filed: 11/26/2013 Page: 2
would affect the need for a continued abatement of this case, the parties are under an obligation to advise the court as soon as reasonably possible.
Entered for the Court ELISABETH A. SHUMAKER, Clerk by: Douglas E. Cressler
Chief Deputy Clerk
2

 
 (ORDER LIST: 571 U.S.) TUESDAY, NOVEMBER 26, 2013

13-115 13-299
13-354 13-356

CERTIORARI GRANTED WOOD, TIM, ET AL. V. MOSS, MICHAEL, ET AL. CLARK, BRANDON C., ET UX. V. RAMEKER, WILLIAM J., ET AL.
The petitions for writs of certiorari are granted. SEBELIUS, SEC. OF H&HS, ET AL. V. HOBBY LOBBY STORES, INC. CONESTOGA WOOD SPECIALTIES V. SEBELIUS, SEC. OF H&HS, ET AL.
The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument.

 
 Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 1 of 15
CLOSED,ERWIN,STAYED,_JT
U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:12−cv−01000−HE

Hobby Lobby Stores Inc et al v. Sebelius et al Assigned to: Honorable Joe Heaton Demand: $250,000 Case in other court: Tenth Circuit Court of Appeals, 12−06294
Tenth Circuit Court of Appeals, 13−06215 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 09/12/2012 Date Terminated: 11/19/2014 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Hobby Lobby Stores Inc

represented by Charles E Geister , III Hartzog Conger Cason & Neville 201 Robert S Kerr Ave Suite 1600 Oklahoma City, OK 73102 405−235−7000 Fax: 405−996−3403 Email: cgeister@hartzoglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek B Ensminger Hartzog Conger Cason & Neville 201 Robert S Kerr Ave Suite 1600 Oklahoma City, OK 73102 405−235−7000 Fax: 405−996−3403 Email: densminger@hartzoglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adele A Keim The Becket Fund for Religious Liberty 3000 K St NW Suite 220 Washington, DC 20007 202/955−0095 Fax: 202/955−0090 Email: akeim@becketfund.org ATTORNEY TO BE NOTICED

Eric S Baxter The Becket Fund for Religious Liberty 1200 New Hampshire Ave NW Suite 700 Washington, DC 20036 202/955−0095 Fax: 202/955−0090 Email: ebaxter@becketlaw.org PRO HAC VICE ATTORNEY TO BE NOTICED

Lori H Windham The Becket Fund for Religious Liberty 3000 K St NW Suite 220 Washington, DC 20007 202/955−0095 Fax: 202/955−0090

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 2 of 15

Email: lwindham@becketfund.org ATTORNEY TO BE NOTICED

Mark L Rienzi The Becket Fund for Religious Liberty 3000 K St NW Suite 220 Washington, DC 20007 202−955−0095 Fax: 202−955−0090 Email: mrienzi@becketfund.org ATTORNEY TO BE NOTICED

Stuart K Duncan The Becket Fund for Religious Liberty 3000 K St NW Suite 220 Washington, DC 20007 202/955−0095 Fax: 202/955−0090 Email: kduncan@becketfund.org ATTORNEY TO BE NOTICED

Plaintiff Mardel Inc

represented by Charles E Geister , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek B Ensminger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adele A Keim (See above for address) ATTORNEY TO BE NOTICED

Eric S Baxter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lori H Windham (See above for address) ATTORNEY TO BE NOTICED

Mark L Rienzi (See above for address) ATTORNEY TO BE NOTICED

Stuart K Duncan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff David Green

represented by Charles E Geister , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek B Ensminger (See above for address) LEAD ATTORNEY

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 3 of 15

ATTORNEY TO BE NOTICED

Adele A Keim (See above for address) ATTORNEY TO BE NOTICED

Eric S Baxter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lori H Windham (See above for address) ATTORNEY TO BE NOTICED

Mark L Rienzi (See above for address) ATTORNEY TO BE NOTICED

Stuart K Duncan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Barbara Green

represented by Charles E Geister , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek B Ensminger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adele A Keim (See above for address) ATTORNEY TO BE NOTICED

Eric S Baxter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lori H Windham (See above for address) ATTORNEY TO BE NOTICED

Mark L Rienzi (See above for address) ATTORNEY TO BE NOTICED

Stuart K Duncan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mart Green

represented by Charles E Geister , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek B Ensminger (See above for address) LEAD ATTORNEY

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 4 of 15

ATTORNEY TO BE NOTICED

Adele A Keim (See above for address) ATTORNEY TO BE NOTICED

Eric S Baxter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lori H Windham (See above for address) ATTORNEY TO BE NOTICED

Mark L Rienzi (See above for address) ATTORNEY TO BE NOTICED

Stuart K Duncan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Steve Green

represented by Charles E Geister , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek B Ensminger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adele A Keim (See above for address) ATTORNEY TO BE NOTICED

Eric S Baxter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Lori H Windham (See above for address) ATTORNEY TO BE NOTICED

Mark L Rienzi (See above for address) ATTORNEY TO BE NOTICED

Stuart K Duncan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Darsee Lett

represented by Charles E Geister , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek B Ensminger (See above for address) LEAD ATTORNEY

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 5 of 15
ATTORNEY TO BE NOTICED
Adele A Keim (See above for address) ATTORNEY TO BE NOTICED
Eric S Baxter (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lori H Windham (See above for address) ATTORNEY TO BE NOTICED
Mark L Rienzi (See above for address) ATTORNEY TO BE NOTICED
Stuart K Duncan (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius Secretary of the United States Department of Health and Human Services
Defendant United States Department of Health and Human Services
Defendant Hilda Solis Secretary of the United States Department of Labor
Defendant United States Department of Labor
Defendant Timothy F Geithner Secretary of the United States Department of Treasury
Defendant United States Department of the Treasury

represented by Michelle R Bennett US Dept of Justice Civil Div−20−DC Federal Programs Branch 20 Massachusetts Ave NW Washington, DC 20001 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) ATTORNEY TO BE NOTICED

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 6 of 15

Amicus Senator Orrin G Hatch
Amicus Senator Daniel R Coats
Amicus Thad Cochran
Amicus Senator Mike Crapo
Amicus Senator Charles Grassley
Amicus Senator James M Inhofe

represented by Andrew W Lester Spencer Fane LLP − OKC 9400 N Broadway Extension Suite 600 Oklahoma City, OK 73114−7423 405−844−9900 Fax: 405−844−9958 Email: alester@spencerfane.com ATTORNEY TO BE NOTICED
Carrie L Vaughn Spencer Fane LLP − OKC 9400 N Broadway Extension Suite 600 Oklahoma City, OK 73114−7423 405−844−9900 Fax: 405−844−9958 Email: cvaughn@spencerfane.com ATTORNEY TO BE NOTICED
represented by Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED
Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED
Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED
Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED
Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 7 of 15

Amicus Senator Mitch McConnell
Amicus Senator Pat Roberts
Amicus Senator Richard Shelby
Amicus Congressman Wally Herger
Amicus Congressman Dan Burton
Amicus Congressman Donald Manzullo
Amicus Congressman John Mica

Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED
Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED
Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED
Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED
Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED
Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED
Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 8 of 15

Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED

Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED

Amicus Congressman Lamar Smith

represented by Andrew W Lester (See above for address) ATTORNEY TO BE NOTICED

Carrie L Vaughn (See above for address) ATTORNEY TO BE NOTICED

Amicus Eric Rasmusen

Date Filed 09/12/2012 09/12/2012
09/12/2012 09/12/2012 09/12/2012 09/12/2012 09/12/2012 09/12/2012 09/12/2012 09/12/2012 09/12/2012 09/12/2012

# Docket Text
1 COMPLAINT against All Defendants filed by Steve Green, David Green, Darsee Lett, Mardel Inc, Barbara Green, Hobby Lobby Stores Inc, Mart Green. (Attachments: # 1 Civil Cover Sheet)(pw) (Entered: 09/12/2012)
2 Summons Issued Electronically as to Timothy F Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (pw) (Entered: 09/12/2012)
3 ENTRY of Appearance by Charles E Geister, III on behalf of All Plaintiffs (Geister, Charles) (Entered: 09/12/2012)
4 ENTRY of Appearance by Derek B Ensminger on behalf of All Plaintiffs (Ensminger, Derek) (Entered: 09/12/2012)
5 NOTICE OF RELATED OR COMPANION CASE by All Plaintiffs (Geister, Charles) (Entered: 09/12/2012)
6 MOTION for Preliminary Injunction and Opening Brief in Support by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Order [Dkt#30] USDC Colorado)(Geister, Charles) (Entered: 09/12/2012)
7 MOTION for Leave to Appear Pro Hac Vice of Eric S. Baxter by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Request for Admission)(Geister, Charles) (Entered: 09/12/2012)
8 MOTION for Leave to Appear Pro Hac Vice of Lori H. Windham by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Request for Admission)(Geister, Charles) (Entered: 09/12/2012)
9 MOTION for Leave to Appear Pro Hac Vice of S. Kyle Duncan by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Request for Admission)(Geister, Charles) (Entered: 09/12/2012)
10 ORDER granting 7 Eric S. Baxter, Esq.'s motion for leave to appear pro hac vice as counsel for plaintiffs. Signed by Honorable Joe Heaton on 09/12/2012. (lam) (Entered: 09/12/2012)
11 ORDER granting 8 Lori H. Windham, Esq.'s motion for leave to appear pro hac vice as counsel for plaintiffs. Signed by Honorable Joe Heaton on 09/12/2012. (lam) (Entered: 09/12/2012)
12 ORDER granting 9 S. Kyle Duncan, Esq.'s motion for leave to appear pro hac vice as counsel for plaintiffs. Signed by Honorable Joe Heaton on 09/12/2012. (lam) (Entered:

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 9 of 15

09/12/2012 09/12/2012
09/14/2012 09/14/2012 09/14/2012 09/28/2012 10/03/2012 10/03/2012 10/03/2012 10/03/2012 10/03/2012 10/03/2012 10/03/2012
10/03/2012
10/04/2012 10/04/2012 10/04/2012
10/09/2012 10/10/2012

09/12/2012)
13 Receipt for Money Received from Hartzog Conger Cason Neville on behalf of All Plaintiffs in the amount of $350.00, receipt number OKW500027306 regarding 1 Complaint. (cpp) (Entered: 09/12/2012)
14 Receipt for Money Received from All Plaintiffs in the amount of $150.00, receipt number OKW500027311 regarding 12 Order on Motion to Appear Pro Hac Vice, 11 Order on Motion to Appear Pro Hac Vice, 10 Order on Motion to Appear Pro Hac Vice (kr) (Entered: 09/12/2012)
15 ENTRY of Appearance by Stuart K Duncan on behalf of All Plaintiffs (Duncan, Stuart) (Entered: 09/14/2012)
16 ENTRY of Appearance by Lori H Windham on behalf of All Plaintiffs (Windham, Lori) (Entered: 09/14/2012)
17 ENTRY of Appearance by Eric S Baxter on behalf of All Plaintiffs (Baxter, Eric) (Entered: 09/14/2012)
18 MOTION to Expedite by All Plaintiffs. (Baxter, Eric) (Entered: 09/28/2012)
19 SUMMONS RETURNED EXECUTED by All Plaintiffs. Kathleen Sebelius served on 10/1/2012. (Baxter, Eric) (Entered: 10/03/2012)
20 SUMMONS RETURNED EXECUTED by All Plaintiffs. United States Department of Health and Human Services served on 10/1/2012. (Baxter, Eric) (Entered: 10/03/2012)
21 SUMMONS RETURNED EXECUTED by All Plaintiffs. Hilda Solis served on 10/1/2012. (Baxter, Eric) (Entered: 10/03/2012)
22 SUMMONS RETURNED EXECUTED by All Plaintiffs. United States Department of Labor served on 10/1/2012. (Baxter, Eric) (Entered: 10/03/2012)
23 SUMMONS RETURNED EXECUTED by All Plaintiffs. Timothy F Geithner served on 10/2/2012. (Baxter, Eric) (Entered: 10/03/2012)
24 SUMMONS RETURNED EXECUTED by All Plaintiffs. United States Department of the Treasury served on 10/2/2012. (Baxter, Eric) (Entered: 10/03/2012)
25 SUMMONS RETURNED EXECUTED as to Non−Party for summonses and complaint served on Eric Holder, U.S. Attorney General on 10/01/2012, filed by Plaintiffs Barbara Green, David Green, Mart Green, Steve Green, Hobby Lobby Stores Inc, Darsee Lett, Mardel Inc. (Baxter, Eric) (Entered: 10/03/2012)
26 SUMMONS RETURNED EXECUTED as to Non−Party for summonses and complaint served on Sanford Coats, U.S. Attorney for the Western District of Oklahoma on 10/03/2012, filed by Plaintiffs Barbara Green, David Green, Mart Green, Steve Green, Hobby Lobby Stores Inc, Darsee Lett, Mardel Inc. (Baxter, Eric) (Entered: 10/03/2012)
27 RESPONSE to Motion re 18 MOTION to Expedite filed by All Defendants. (Bennett, Michelle) (Entered: 10/04/2012)
28 ENTRY of Appearance by Michelle R Bennett on behalf of All Defendants (Bennett, Michelle) (Entered: 10/04/2012)
29 ENTER ORDER...setting plaintiffs' motion 6 for preliminary injunction for hearing on 10/24/2012 @ 10:00 a.m., in Courtroom No. 304 before Honorable Joe Heaton; Defendants' response to plaintiffs' motion 6 is due for filing on 10/22/2012. Signed by Honorable Joe Heaton on 10/04/2012. (lam) (Entered: 10/04/2012)
30 UNOPPOSED MOTION to Continue hearing on motion for preliminary injunction by All Defendants. (Bennett, Michelle) (Entered: 10/09/2012)
31 ORDER granting 30 the government's unopposed motion for continuance...the hearing on plaintiffs' motion for preliminary injunction 6 is CONTINUED to 10/30/2012 @ 9:00 a.m., in Courtroom No. 304. Signed by Honorable Joe Heaton on 10/10/2012. (lam) (Entered: 10/10/2012)

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 10 of 15

10/10/2012 10/11/2012
10/11/2012
10/11/2012
10/15/2012 10/16/2012 10/17/2012 10/17/2012 10/17/2012
10/22/2012 10/29/2012 11/01/2012 11/17/2012 11/19/2012 11/19/2012 11/19/2012 11/20/2012

32 CORRECTED ORDER continuing hearing on plaintiffs' motion 6 for preliminary injunction to: 11/1/2012 @ 09:00 AM in Courtroom 304 before Honorable Joe Heaton. Signed by Honorable Joe Heaton on 10/10/2012. (lam) (Entered: 10/10/2012)
33 AMICUS CURIAE APPEARANCE entered by Andrew W Lester on behalf of Orrin G Hatch, Daniel R Coats, Thad Cochran, Mike Crapo, Charles Grassley, James M Inhofe, Mitch McConnell, Pat Roberts, Richard Shelby, Wally Herger, Dan Burton, Donald Manzullo, John Mica, Lamar Smith. (Lester, Andrew) (Entered: 10/11/2012)
34 UNOPPOSED MOTION to File Amicus Brief by Dan Burton, Daniel R Coats, Thad Cochran, Mike Crapo, Charles Grassley, Orrin G Hatch, Wally Herger, James M Inhofe, Donald Manzullo, Mitch McConnell, John Mica, Pat Roberts, Richard Shelby, Lamar Smith. (Lester, Andrew) (Entered: 10/11/2012)
35 ENTRY of Appearance by Carrie L Vaughn on behalf of Dan Burton, Daniel R Coats, Thad Cochran, Mike Crapo, Charles Grassley, Orrin G Hatch, Wally Herger, James M Inhofe, Donald Manzullo, Mitch McConnell, John Mica, Pat Roberts, Richard Shelby, Lamar Smith (Vaughn, Carrie) (Entered: 10/11/2012)
36 ORDER denying 34 various currently serving Members of Congress' motion for leave to file an amicus brief...see order for specifics. Signed by Honorable Joe Heaton on 10/15/2012. (lam) (Entered: 10/15/2012)
37 MOTION for Leave to File Excess Pages by All Defendants. (Bennett, Michelle) (Entered: 10/16/2012)
38 MEMORANDUM in Opposition re 37 MOTION for Leave to File Excess Pages filed by All Plaintiffs. (Baxter, Eric) (Entered: 10/17/2012)
39 REPLY to Response to Motion re 37 MOTION for Leave to File Excess Pages filed by All Defendants. (Bennett, Michelle) (Entered: 10/17/2012)
40 ORDER granting 37 defendants' motion for leave to file response brief not exceeding 40 pages; and granting plaintiffs' request for additional pages and their reply brief may be up to 25 pages in length. Signed by Honorable Joe Heaton on 10/17/2012. (lam) (Entered: 10/17/2012)
41 RESPONSE in Opposition re 6 MOTION for Preliminary Injunction and Opening Brief in Support filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Bennett, Michelle) (Entered: 10/22/2012)
42 REPLY by Plaintiffs Barbara Green, David Green, Mart Green, Steve Green, Hobby Lobby Stores Inc, Darsee Lett, Mardel Inc re 41 Response in Opposition to Motion filed by All Plaintiffs. (Duncan, Stuart) (Entered: 10/29/2012)
43 Minute Entry for proceedings held before Honorable Joe Heaton...hearing held on plaintiffs' motion for preliminary injunction 6 ; arguments from counsel heard; court to enter written order. (Court Reporter Jeanne Ring) (lam) (Entered: 11/01/2012)
44 NOTICE (other) by All Plaintiffs re 6 MOTION for Preliminary Injunction and Opening Brief in Support (Attachments: # 1 Exhibit A)(Baxter, Eric) (Entered: 11/17/2012)
45 ORDER denying 6 plaintiffs' motion for preliminary injunction...see order for specifics. Signed by Honorable Joe Heaton on 11/19/2012. (lam) (Entered: 11/19/2012)
46 NOTICE OF APPEAL as to 45 Order on Motion for Preliminary Injunction by All Plaintiffs. Filing fee $ 455. (Duncan, Stuart) (Entered: 11/19/2012)
47 PRELIMINARY RECORD LETTER − Electronic Transmission of Notice of Appeal with Preliminary Record sent to Tenth Circuit Court of Appeals re 46 Notice of Appeal (pw) (Entered: 11/20/2012)
48 USCA Appeal Fee received in the amount of $ 455, receipt number OKW500028848, re 46 Notice of Appeal filed by Mart Green, Hobby Lobby Stores Inc, Steve Green, Barbara Green, Mardel Inc, David Green, Darsee Lett (pw) (Entered: 11/20/2012)

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 11 of 15

11/20/2012 11/28/2012 11/30/2012 12/03/2012 12/03/2012 12/10/2012 12/12/2012 12/20/2012 12/31/2012
01/02/2013 01/03/2013 01/04/2013 01/08/2013 01/08/2013 01/10/2013 01/10/2013

49 Tenth Circuit Court of Appeals USCA Case Number 12−6294 for 46 Notice of Appeal filed by Mart Green, Hobby Lobby Stores Inc, Steve Green, Barbara Green, Mardel Inc, David Green, Darsee Lett. (pw) (Entered: 11/20/2012)
50 TRANSCRIPT REQUEST by All Plaintiffs for proceedings held on 11/01/2012 before Judge Joe Heaton.. (Duncan, Stuart) (Entered: 11/28/2012)
51 UNOPPOSED MOTION for Extension of Time to Respond to Complaint by All Defendants. (Bennett, Michelle) (Entered: 11/30/2012)
52 TRANSCRIPT Order Form re 46 Notice of Appeal that transcripts are necessary. See order form for dates and proceedings. Estimated completion date December 27, 2012. (jr, ) (Entered: 12/03/2012)
53 ORDER granting 51 defendants' unopposed motion for extension of time...defendants shall file their answer or other responsive pleading to plaintiffs complaint not later than 12/13/2012. Signed by Honorable Joe Heaton on 12/03/2012. (lam) (Entered: 12/03/2012)
54 JOINT MOTION to Stay Case Pending Appeal by All Defendants. (Bennett, Michelle) (Entered: 12/10/2012)
55 ORDER granting 54 the parties' motion motion to stay...further proceedings in this case are stayed pending resolution of plaintiff's appeal to the Tenth Circuit Court of Appeals or further order of the court. Signed by Honorable Joe Heaton on 12/12/2012. (lam) (Entered: 12/12/2012)
56 ORDER of USCA − The motion for an injunction pending appeal is denied as to 46 Notice of Appeal filed by Mart Green, Hobby Lobby Stores Inc, Steve Green, Barbara Green, Mardel Inc, David Green, Darsee Lett (pw) (Entered: 12/20/2012)
57 NOTICE OF FILING OF OFFICIAL TRANSCRIPT before Judge Joe Heaton, re 46 Notice of Appeal Court Reporter B. Jeanne Ring, RDR, Telephone number 405 820−2067. Transcript of: Motion for Preliminary Injunction Volume: I of I Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/22/2013. Redacted Transcript Deadline set for 1/31/2013. Release of Transcript Restriction set for 4/1/2013. (jr, ) (Entered: 12/31/2012)
58 TRANSCRIPT LETTER advising transcripts have been electronically filed. re 46 Notice of Appeal filed by Mart Green, Hobby Lobby Stores Inc, Steve Green, Barbara Green, Mardel Inc, David Green, Darsee Lett. The record is ready for appeal purposes. (kw, ) (Entered: 01/02/2013)
59 CIVIL STATUS CONFERENCE DOCKET: Scheduling Conference set for 2/5/2013 @ 09:30 AM in Chambers before Honorable Joe Heaton. Status Report due by 1/28/2013. (lam) (Entered: 01/03/2013)
60 ENTER ORDER the civil status conference 59 set before the court on 02/05/2013 is STRICKEN. Signed by Honorable Joe Heaton on 01/04/2013. (lam) (Entered: 01/04/2013)
61 MOTION for Leave to Appear Pro Hac Vice of Adele Auxier Keim by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Request for Admission)(Geister, Charles) (Entered: 01/08/2013)
62 Receipt for Money Received from All Plaintiffs in the amount of $50.00, receipt number OKW500029811 regarding 61 MOTION for Leave to Appear Pro Hac Vice of Adele Auxier Keim (pw) (Entered: 01/08/2013)
63 ORDER granting 61 Adele Auxier Keim, Esq., leave to appear pro hac vice as counsel for plaintiffs. Signed by Honorable Joe Heaton on 01/10/2013. (lam) (Entered: 01/10/2013)
64 ENTRY of Appearance by Adele A Keim on behalf of All Plaintiffs (Keim, Adele) (Entered: 01/10/2013)

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 12 of 15

06/27/2013 06/27/2013 06/27/2013 06/27/2013 06/28/2013
06/28/2013 07/08/2013 07/10/2013 07/10/2013 07/10/2013 07/11/2013 07/19/2013
07/19/2013
07/24/2013

65 USCA OPINION Reversed and Remanded to District Court of Western District of Oklahoma as to 46 Notice of Appeal filed by Mart Green, Hobby Lobby Stores Inc, Steve Green, Barbara Green, Mardel Inc, David Green, Darsee Lett (Attachments: # 1 Attachment Letter from Tenth Circuit Court of Appeals)(pw) (Entered: 06/27/2013)
66 USCA JUDGMENT Reserved and Remanded to US District Court of Western District of Oklahoma as to 46 Notice of Appeal filed by Mart Green, Hobby Lobby Stores Inc, Steve Green, Barbara Green, Mardel Inc, David Green, Darsee Lett (pw) (Entered: 06/27/2013)
67 MANDATE ISSUED From USCA 46 Notice of Appeal filed by Mart Green, Hobby Lobby Stores Inc, Steve Green, Barbara Green, Mardel Inc, David Green, Darsee Lett (pw) (Entered: 06/27/2013)
68 EMERGENCY MOTION for Preliminary Injunction by All Plaintiffs. (Duncan, Stuart) (Entered: 06/27/2013)
69 ORDER granting 68 plaintiffs' emergency motion for temporary restraining order pending hearing on plaintiffs' motion for preliminary injunction; party seeking leave to offer additional evidence shall do so by motion and brief by 07/03/2013...any response to such motion shall be filed by 07/10/2013; hearing on plaintiffs' for preliminary injunction is set 07/19/2013 at 9:00 a.m., in Courtroom No. 304 before the Honorable Joe Heaton. Signed by Honorable Joe Heaton on 06/28/2013. (lam) (Entered: 06/28/2013)
Set/Reset Hearings: hearing on plaintiffs' motion 68 for preliminary injunction set: 07/19/2013 @ 09:00 AM in Courtroom 304 Honorable Joe Heaton per order 69 . (lam) (Entered: 06/28/2013)
70 MOTION for Order to file a Brief in support of Plaintiff's Motion for Preliminary Injunction by Amicus Curiae Eric Rasmusen. (pw) (Entered: 07/08/2013)
71 MOTION for Leave to Appear Pro Hac Vice for Mark L. Rienzi by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Request for Admission)(Geister, Charles) (Entered: 07/10/2013)
72 ORDER granting 71 Mark L. Rienzi, Esq., leave to appear pro hac vice for plaintiffs. Signed by Honorable Joe Heaton on 07/10/2013. (lam) (Entered: 07/10/2013)
74 Receipt for Money Received from All Plaintiffs in the amount of $50.00, receipt number OKW500033682 regarding 71 MOTION for Leave to Appear Pro Hac Vice for Mark L. Rienzi (pw) (Entered: 07/11/2013)
73 ENTRY of Appearance by Mark L Rienzi on behalf of All Plaintiffs (Rienzi, Mark) (Entered: 07/11/2013)
75 Minute Entry for proceedings held before the Honorable Joe Heaton...hearing held on plaintiffs' emergency motion 68 for preliminary injunction; counsel for the parties present; court hears oral argument; plaintiffs' motion 68 is granted and this proceeding is STAYED until 10/01/2013; written order to follow. (Court Reporter Jeanne Ring) (lam) (Entered: 07/19/2013)
76 ORDER granting 68 plaintiffs' motion for issuance of a preliminary injunction...defendants, their agents, officers and employees are enjoined and restrained from any effort to apply or enforce as to plaintiffs, the substantive requirements imposed in 42:300gg−12(a)(4) and at issue in this case, or the penalties related thereto until further order of the court; as agreed by the parties further proceedings in this case are stayed until 10/01/2013...see order for further specifics. Signed by Honorable Joe Heaton on 07/19/2013. (lam) (Entered: 07/19/2013)
77 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on July 19, 2013 before Judge Joe Heaton. Court Reporter: B. Jeanne Ring, RDR, Telephone number 405 820−2067. Transcript of: Motion for Preliminary Injunction Volume: I of I Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/14/2013. Redacted Transcript Deadline set for 8/26/2013. Release of Transcript Restriction set for 10/22/2013. (jr, ) (Entered: 07/24/2013)

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 13 of 15

08/19/2013
09/17/2013 09/18/2013 09/18/2013
09/20/2013 09/23/2013 09/24/2013
09/26/2013 11/26/2013
01/10/2014 05/14/2014
06/30/2014 09/04/2014
09/04/2014
09/09/2014 09/26/2014 09/29/2014

78 ENTER ORDER...in light of the order previously entered by the court the motion of Eric Rasmussen for leave to file an amicus brief in support of plaintiffs' preliminary injuction 70 is stricken as moot. Signed by Honorable Joe Heaton on 08/19/2013. (lam) (Entered: 08/19/2013)
79 NOTICE OF APPEAL as to 76 Order on Motion for Order,, by All Defendants. (Bennett, Michelle) (Entered: 09/17/2013)
80 PRELIMINARY RECORD LETTER − Electronic Transmission of Notice of Appeal with Preliminary Record sent to Tenth Circuit Court of Appeals re 79 Notice of Appeal, 76 Order on Motion for Order. (pw) (Entered: 09/18/2013)
81 Tenth Circuit Court of Appeals USCA Case Number 13−6215 for 79 Notice of Appeal filed by United States Department of the Treasury, Timothy F Geithner, Hilda Solis, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor. (pw) (Entered: 09/18/2013)
82 PETITION FOR WRIT OF CERTIORARI re Supreme Court Number:13−354 (pw) (Entered: 09/20/2013)
83 JOINT MOTION to Stay Case by All Defendants. (Bennett, Michelle) (Entered: 09/23/2013)
84 ORDER granting 83 the parties' joint motion to extend the stay previously entered based on the government's filing of a petition for writ of certiorari that seeks Supreme Court review of the 10th Circuit's 06/27/2013 en bac decision...this case is STAYED pending the Supreme Court's disposition of the government's petition. Signed by Honorable Joe Heaton on 09/24/2013. (lam) (Entered: 09/24/2013)
85 ORDER of USCA granting Unopposed Motion to Hold Apeal in Abeyance. See order for specifics. (pw) (Entered: 09/26/2013)
86 ORDER of USCA as to 79 Notice of Appeal − Order filed by Clerk of the Court (DEC) continuing abatement. Status report(s) due 05/12/2014 by Hobby Lobby Stores, Inc., et al. and Kathleen Sebelius, et al. However, if there are any developments in the Supreme Court that would affect the need for continued abatement of this case, the parties are under an obligation to advise the court as soon as reasonably possible. (kw, ) (Entered: 11/27/2013)
87 USCA LETTER response to request for a certiorari record re 79 Notice of Appeal (pw) (Entered: 01/14/2014)
88 ORDER of USCA continuing abatement. Status report due 7/14/14 as to 79 Notice of Appeal filed by United States Department of the Treasury, Timothy F Geithner, Hilda Solis, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor (pw) (Entered: 05/14/2014)
89 Opinion Letter re Supreme Court Number:13−354 (pw) (Entered: 07/01/2014)
90 ORDER of USCA dismissing case as to 79 Notice of Appeal filed by United States Department of the Treasury, Timothy F Geithner, Hilda Solis, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor (pw) (Entered: 09/05/2014)
91 USCA MANDATE Issued dismissing case re 79 Notice of Appeal filed by United States Department of the Treasury, Timothy F Geithner, Hilda Solis, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor (pw) (Entered: 09/05/2014)
92 CIVIL STATUS CONFERENCE DOCKET: Scheduling Conference set for 10/7/2014 @ 11:20 AM in Chambers before Honorable Joe Heaton. Status Report due by 9/29/2014. (lam) (Entered: 09/09/2014)
93 JOINT MOTION to Strike 92 Docket Status Hearing by All Plaintiffs. (Rienzi, Mark) (Entered: 09/26/2014)
94 ORDER granting 93 the parties' joint motion for order striking status conference...the 10/07/2014 conference is stricken as is the required joint status report; the parties are directed to file by 10/17/2014 a joint proposed injunction and judgment or if

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 14 of 15

09/29/2014 10/17/2014 10/20/2014 10/24/2014
11/19/2014
11/19/2014
01/06/2015 01/07/2015 02/11/2015 02/12/2015 03/30/2015 04/01/2015 05/20/2015

agreement as to disposition of the case cannot be reached, their joint proposal for further proceedings in the case. Signed by Honorable Joe Heaton on 09/29/2014. (lam) (Entered: 09/29/2014)
Per order 94 the 10/07/2014 civil status conference is stricken. (lam) (Entered: 09/29/2014)
95 STATUS REPORT (Jointly filed) by Defendants Timothy F Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 10/17/2014)
96 ORDER directing parties to file by 10/24/2014 a further joint status report setting out their respective positions as to the judgment to be entered. Signed by Honorable Joe Heaton on 10/20/2014. (lam) (Entered: 10/20/2014)
97 STATUS REPORT (Jointly filed) by Defendants Timothy F Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Bennett, Michelle) (Entered: 10/24/2014)
98 ORDER accordingly in light of the Supreme Court's decision in Burwell and the parties further submissions it is ordered that judgment will be entered in favor of Hobby Lobby Stores, Inc., and Mardel, Inc., and against defendants on the corporate plaintiffs' claims under the Religious Freedom Restoration Act...defendants, their employees, agents, and successors in office are permanently enjoined from enforcing against plaintiffs their employee health plain, group health coverage and/or plaintiffs' health insurance issuers and third−party administrators; all plaintiffs' remaining claims are dismissed without prejudice; as the prevailing parties are entitled to recover costs the parties are directed to confer to reach an agreement on attorney's fees and costs; if the parties are unable to reach an agreement plaintiffs may file a motion for attorney's fees and a bill of costs within 60 days of the entry of judgment...see order for specifics. Signed by Honorable Joe Heaton on 11/19/2014. (lam) (Main Document 98 replaced on 11/20/2014) (lam). (Entered: 11/19/2014)
99 JUDGMENT in accordance with order 98 judgment is entered in favor of plaintiffs Hobby Lobby Stores, Inc., and Mardel, Inc., and against defendants on the corporate plaintiffs' claims under the Religious Freedom Restoration Act...corporate plaintiffs shall recover costs...all other claims of plaintiffs are dismissed without prejudice. Signed by Honorable Joe Heaton on 11/19/2014. (lam) (Entered: 11/19/2014)
100 FIRST MOTION for Extension of Time by Hobby Lobby Stores Inc. (Rienzi, Mark) (Entered: 01/06/2015)
101 ORDER granting 100 plaintiffs' unopposed motion for extension of deadline...plaintiffs shall file their motion for fees and bill of costs not later than 02/19/2015. Signed by Honorable Joe Heaton on 01/07/2015. (lam) (Entered: 01/07/2015)
102 JOINT MOTION for Extension of Time for plaintiffs to file any motion for attorney's fees and bill of costs by All Defendants. (Bennett, Michelle) (Entered: 02/11/2015)
103 ORDER granting 102 the parties' joint motion for extension of time...plaintiffs shall file their motion for attorney's fees and bill of costs not later than 04/20/2015. Signed by Honorable Joe Heaton on 02/12/2015. (lam) (Entered: 02/12/2015)
104 JOINT MOTION for Extension of Time by All Plaintiffs. (Rienzi, Mark) (Entered: 03/30/2015)
105 ORDER granting 104 the parties' joint motion for extension of deadline...the parties shall file any motion for fees and bill of cost not later than 05/20/2015. Signed by Honorable Joe Heaton on 04/01/2015. (lam) (Entered: 04/01/2015)
106 UNOPPOSED MOTION for Extension of Time by All Plaintiffs. (Rienzi, Mark) (Entered: 05/20/2015)

Case: 5:12-cv-1000 As of: 10/17/2019 09:47 AM CDT 15 of 15

05/27/2015

107 ORDER granting 106 plaintiffs' unopposed motion for extension of time to file fee motion...plaintiffs shall file their bill of costs and/or motion for attorney's fees not later than 07/20/2015. Signed by Honorable Joe Heaton on 05/27/2015. (lam) (Entered: 05/27/2015)

 
 Hobby Lobby Stores, Inc. v. Sebelius, 133 S.Ct. 641 (2012)

133 S.Ct. 641 Supreme Court of the United States
HOBBY LOBBY STORES, INC., et al., v.
Kathleen SEBELIUS, Secretary of Health and Human Services, et al.
No. 12A644. | Dec. 26, 2012.
Synopsis Background: Closely held for-profit corporations brought action for declaratory and injunctive relief against Secretary of Health and Human Services (HHS) under Free Exercise Clause and Religious Freedom Restoration Act (RFRA), alleging that under Health Resources Services Administration (HRSA) guidelines promulgated pursuant to Patient Protection and Affordable Care Act, corporations would be required to provide insurance coverage for drugs and devices that could cause abortions. Corporations moved for preliminary injunction to prevent enforcement of contraception-coverage requirement. The United States District Court for the Western District of Oklahoma, Joe Heaton, J., 870 F.Supp.2d 1278, denied motion. Corporations appealed. The Court of Appeals for the Tenth Circuit denied corporations’ motion for injunction pending resolution of appeal. Corporations and individuals applied to Circuit Justice for injunction pending appellate review.
[Holding:] The Supreme Court, Justice Sotomayor, sitting as a single justice, held that injunction would not be issued, inasmuch as corporations’ entitlement to relief was not indisputably clear, and injunction was not necessary or appropriate to aid Supreme Court’s jurisdiction.
Application denied.
Opinion
*642 Justice SOTOMAYOR, Circuit Justice.
This is an application for an injunction pending appellate review filed with me as Circuit Justice for the Tenth Circuit. The applicants are two closely held for-profit

corporations, Hobby Lobby Stores, Inc. (Hobby Lobby) and Mardel, Inc. (Mardel), and five family members who indirectly own and control those corporations. Hobby Lobby is an arts and crafts retail chainstore, with more than 13,000 employees in over 500 stores nationwide. Mardel is a chain of Christian-themed bookstores, with 372 full-time employees in 35 stores. Employees of the two corporations and their families receive health insurance from the corporations’ self-insured group health plans.
Under § 1001(5) of the Patient Protection and Affordable Care Act, 124 S tat. 131, 42 U.S.C. § 300gg–13(a), non grandfathered group health plans must cover certain preventive health services without cost-sharing, including various preventive services for women as provided in guidelines issued by the Health Resources Services Administration (HRSA), a component of the Department of Health and Human Services. As relevant here, HRSA’s guidelines for women’s preventive services require coverage for “all Food and Drug Administration ... approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity as prescribed by a provider.” 77 Fed.Reg. 8725 (Feb. 15, 2012) (internal quotation marks omitted).
The applicants filed an action in Federal District Court for declaratory and injunctive relief under the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq. They allege that under the HRSA guidelines, Hobby Lobby and Mardel will be required, contrary to the applicants’ religious beliefs, to provide insurance coverage for certain drugs and devices that the applicants believe can cause abortions. The applicants simultaneously filed a motion for a preliminary injunction to prevent enforcement of the contraception-coverage requirement, which is scheduled to take effect with respect to the employee insurance plans of Hobby Lobby and Mardel on January 1, 2013. The District Court for the Western District of Oklahoma denied the motion for a preliminary injunction, and the Court of Appeals for the Tenth Circuit denied the applicants’ motion for an injunction pending resolution of the appeal.
[1] [2] The only source of authority for this Court to issue an injunction is the All Writs Act, 28 U.S.C. § 1651(a). “We have consistently stated, and our own Rules so require, that such power is to be used sparingly.” Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1303, 113 S.Ct. 1806, 123 L.Ed.2d 642 (1993) (Rehnquist, C. J., in chambers); see this Court’s Rule 20.1 (“Issuance by the
1

Hobby Lobby Stores, Inc. v. Sebelius, 133 S.Ct. 641 (2012)

Court of an extraordinary writ authorized by 28 U.S.C. § 1651(a) is not a matter of right, but of discretion sparingly exercised”). Unlike a stay of an appeals court decision pursuant to 28 U.S.C. § 2101(f), a request for an injunction pending appeal “ ‘does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.’ ” Respect Maine PAC v. McKee, 562 U.S. ––––, 131 S.Ct. 445, 178 L.Ed.2d 346 (2010) (quoting Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Comm’n, 479 U.S. 1312, 1313, 107 S.Ct. 682, 93 L.Ed.2d 692 (1986) (SCALIA, J., in chambers)). Accordingly, a Circuit Justice may issue an injunction only when it is “[n]ecessary or appropriate in aid of our jurisdiction” and “the legal rights at issue *643 are indisputably clear.” Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 542 U.S. 1305, 1306, 125 S.Ct. 2, 159 L.Ed.2d 805 (2004) (Rehnquist, C.J., in chambers) (internal quotation marks omitted).
[3] Applicants do not satisfy the demanding standard for the extraordinary relief they seek. First, whatever the ultimate merits of the applicants’ claims, their entitlement to relief is not “indisputably clear.” Lux v. Rodrigues, 561 U.S. ––––, ––––, 131 S.Ct. 5, 6, 177 L.Ed.2d 1045 (2010) (ROBERTS, C.J., in chambers) (internal quotation marks omitted). This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee

benefits substantially burdens their exercise of religion. Cf. United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (rejecting free exercise claim brought by individual Amish employer who argued that paying Social Security taxes for his employees interfered with his exercise of religion). Moreover, the applicants correctly recognize that lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims, Application for Injunction Pending Appellate Review 25–26, and no court has issued a final decision granting permanent relief with respect to such claims. Second, while the applicants allege they will face irreparable harm if they are forced to choose between complying with the contraception-coverage requirement and paying significant fines, they cannot show that an injunction is necessary or appropriate to aid our jurisdiction. Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court.
For the foregoing reasons, the application for an injunction pending appellate review is denied.
It is so ordered.

2

 
 (Slip Opinion)

OCTOBER TERM, 2013

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. HOBBY LOBBY STORES, INC.,
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 13–354. Argued March 25, 2014—Decided June 30, 2014*
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). At issue here are regulations promulgated by the Department of Health and Human Services (HHS) under the Patient Protection and Affordable Care Act of 2010 (ACA), which, as relevant here, requires specified employers’ group health plans to furnish “preventive care and screenings” for women without “any cost sharing requirements,” 42 U. S. C. §300gg–13(a)(4). Congress did not specify what types of preventive care must be covered; it authorized the Health Resources and Services Administration, a component of HHS, to decide. Ibid. Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Admin-
—————— * Together with No. 13–356, Conestoga Wood Specialties Corp. et al.
v. Burwell, Secretary of Health and Human Services, et al., on certiorari to the United States Court of Appeals for the Third Circuit.

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Syllabus
istration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accommodation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any costsharing requirements on the employer, its insurance plan, or its employee beneficiaries.
In these cases, the owners of three closely held for-profit corporations have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions, they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide health coverage for the four objectionable contraceptives. In No. 13–356, the District Court denied the Hahns and their company—Conestoga Wood Specialties—a preliminary injunction. Affirming, the Third Circuit held that a for-profit corporation could not “engage in religious exercise” under RFRA or the First Amendment, and that the mandate imposed no requirements on the Hahns in their personal capacity. In No. 13–354, the Greens, their children, and their companies—Hobby Lobby Stores and Mardel—were also denied a preliminary injunction, but the Tenth Circuit reversed. It held that the Greens’ businesses are “persons” under RFRA, and that the corporations had established a likelihood of success on their RFRA claim because the contraceptive mandate substantially burdened their exercise of religion and HHS had not demonstrated a compelling interest in enforcing the mandate against them; in the alternative, the court held that HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling governmental interest.
Held: As applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA. Pp. 16–49. (a) RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, Hobby Lobby, and Mardel. Pp. 16–31. (1) HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as cor-

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Syllabus
porations. RFRA’s text shows that Congress designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fiction of including corporations within RFRA’s definition of “persons,” but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them. Pp. 16–19.
(2) HHS and the dissent make several unpersuasive arguments. Pp. 19–31.
(i) Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of “person,” which “include[s] corporations, . . . as well as individuals.” 1 U. S. C. §1. The Court has entertained RFRA and free-exercise claims brought by nonprofit corporations. See, e.g., Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418. And HHS’s concession that a nonprofit corporation can be a “person” under RFRA effectively dispatches any argument that the term does not reach for-profit corporations; no conceivable definition of “person” includes natural persons and nonprofit corporations, but not for-profit corporations. Pp. 19–20.
(ii) HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby, and Mardel because they cannot “exercise . . . religion.” They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofit corporations. And the profitmaking objective of the corporations cannot explain it because the Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown, 366 U. S. 599. Business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understanding of the “exercise of religion” that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877. Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners’ religious principles. Pp. 20–25.
(iii) Also flawed is the claim that RFRA offers no protection because it only codified pre-Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit corporations. First, nothing in RFRA as originally enacted suggested that its definition of “exercise of religion” was meant to be tied to pre-

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Syllabus
Smith interpretations of the First Amendment. Second, if RFRA’s original text were not clear enough, the RLUIPA amendment surely dispels any doubt that Congress intended to separate the definition of the phrase from that in First Amendment case law. Third, the preSmith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, suggests, if anything, that for-profit corporations can exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide very broad protection for religious liberty, merely restored this Court’s pre-Smith decisions in ossified form and restricted RFRA claims to plaintiffs who fell within a category of plaintiffs whose claims the Court had recognized before Smith. Pp. 25–28.
(3) Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because of the difficulty of ascertaining the “beliefs” of large, publicly traded corporations, but HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. That disputes among the owners of corporations might arise is not a problem unique to this context. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. Courts will turn to that structure and the underlying state law in resolving disputes. Pp. 29–31.
(b) HHS’s contraceptive mandate substantially burdens the exercise of religion. Pp. 31–38.
(1) It requires the Hahns and Greens to engage in conduct that seriously violates their sincere religious belief that life begins at conception. If they and their companies refuse to provide contraceptive coverage, they face severe economic consequences: about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel. And if they drop coverage altogether, they could face penalties of roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. P. 32.
(2) Amici supporting HHS argue that the $2,000 per-employee penalty is less than the average cost of providing insurance, and therefore that dropping insurance coverage eliminates any substantial burden imposed by the mandate. HHS has never argued this and the Court does not know its position with respect to the argument. But even if the Court reached the argument, it would find it unpersuasive: It ignores the fact that the plaintiffs have religious reasons for providing health-insurance coverage for their employees, and it is far from clear that the net cost to the companies of providing insur-

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Syllabus
ance is more than the cost of dropping their insurance plans and paying the ACA penalty. Pp. 32–35.
(3) HHS argues that the connection between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the employee who will choose the coverage and contraceptive method she uses. But RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs. The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to determine” whether the plaintiffs’ asserted religious belief reflects “an honest conviction,” id., at 716, and there is no dispute here that it does. Tilton v. Richardson, 403 U. S. 672, 689; and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249, distinguished. Pp. 35–38.
(c) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest. Pp. 38–49.
(1) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA. Pp. 39–40.
(2) The Government has failed to satisfy RFRA’s leastrestrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests. Pp. 40–45.
(3) This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage man-

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Syllabus
dates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice. United States v. Lee, 455 U. S. 252, which upheld the payment of Social Security taxes despite an employer’s religious objection, is not analogous. It turned primarily on the special problems associated with a national system of taxation; and if Lee were a RFRA case, the fundamental point would still be that there is no less restrictive alternative to the categorical requirement to pay taxes. Here, there is an alternative to the contraceptive mandate. Pp. 45–49. No. 13–354, 723 F. 3d 1114, affirmed; No. 13–356, 724 F. 3d 377, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to all but Part III–C–1. BREYER and KAGAN, JJ., filed a dissenting opinion.

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1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–354 and 13–356
_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354

v.

HOBBY LOBBY STORES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 30, 2014]

JUSTICE ALITO delivered the opinion of the Court.
We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the

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Opinion of the Court
Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.
In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.
Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.
Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.

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Opinion of the Court
In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.
As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages . . . on others” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women em-

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Opinion of the Court
ployed by Hobby Lobby.” Post, at 2.1 The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
I A
Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty. RFRA’s enactment came three years after this Court’s decision in Employ­ ment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner, 374 U. S. 398 (1963), and Wiscon­ sin v. Yoder, 406 U. S. 205 (1972). In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. 374 U. S., at 408–409. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406 U. S., at 210–211, 234–236.
In Smith, however, the Court rejected “the balancing
——————
1 See also post, at 8 (“The exemption sought by Hobby Lobby and Conestoga . . . would deny [their employees] access to contraceptive coverage that the ACA would otherwise secure”)

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Opinion of the Court
test set forth in Sherbert.” 494 U. S., at 883. Smith concerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause. 494 U. S., at 875.
This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” 494 U. S., at 888. The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” City of Boerne v. Flores, 521 U. S. 507, 514 (1997).
Congress responded to Smith by enacting RFRA. “[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U. S. C. §2000bb(a)(2); see also §2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” §2000bb–1(a).2 If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling govern-
——————
2 The Act defines “government” to include any “department” or “agency” of the United States. §2000bb–2(1).

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Opinion of the Court
mental interest.” §2000bb–1(b).3 As enacted in 1993, RFRA applied to both the Federal
Government and the States, but the constitutional authority invoked for regulating federal and state agencies differed. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agency’s work,4 but in attempting to regulate the States and their subdivisions, Congress relied on its power under Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U. S., at 516–517. In City of Boerne, however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith.” Id., at 533–534. See also id., at 532.
Following our decision in City of Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq. That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. See Cutter v. Wilkinson, 544 U. S. 709, 715–716 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition of the “exercise of religion.” See §2000bb–2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition

——————
3 In City of Boerne v. Flores, 521 U. S., 507 (1997), we wrote that RFRA’s “least restrictive means requirement was not used in the preSmith jurisprudence RFRA purported to codify.” Id., at 509. On this understanding of our pre-Smith cases, RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions.
4 See, e.g., Hankins v. Lyght, 441 F. 3d 96, 108 (CA2 2006); Guam v. Guerrero, 290 F. 3d 1210, 1220 (CA9 2002).

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made reference to the First Amendment. See §2000bb– 2(4) (1994 ed.) (defining “exercise of religion” as “the exercise of religion under the First Amendment”). In RLUIPA, in an obvious effort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). And Congress mandated that this concept “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.” §2000cc– 3(g).5
B
At issue in these cases are HHS regulations promulgated under the Patient Protection and Affordable Care Act of 2010 (ACA), 124 Stat. 119. ACA generally requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essential coverage.” 26 U. S. C. §5000A(f)(2); §§4980H(a), (c)(2). Any covered employer that does not provide such coverage must pay a substantial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individ-
——————
5 The principal dissent appears to contend that this rule of construction should apply only when defining the “exercise of religion” in an RLUIPA case, but not in a RFRA case. See post, at 11, n. 10. That argument is plainly wrong. Under this rule of construction, the phrase “exercise of religion,” as it appears in RLUIPA, must be interpreted broadly, and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” 42 U. S. C. §2000bb–2(4). It necessarily follows that the “exercise of religion” under RFRA must be given the same broad meaning that applies under RLUIPA.

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Opinion of the Court
ual.” §§4980D(a)–(b). And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the government-run ACA exchanges, the employer must pay $2,000 per year for each of its fulltime employees. §§4980H(a), (c)(1).
Unless an exception applies, ACA requires an employer’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” 42 U. S. C. §300gg–13(a)(4). Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. Ibid. The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require. See 77 Fed. Reg. 8725–8726 (2012).
In August 2011, based on the Institute’s recommendations, the HRSA promulgated the Women’s Preventive Services Guidelines. See id., at 8725–8726, and n. 1; online at http://hrsa.gov/womensguidelines (all Internet materials as visited June 26, 2014, and available in Clerk of Court’s case file). The Guidelines provide that nonexempt employers are generally required to provide “coverage, without cost sharing” for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling.” 77 Fed. Reg. 8725 (internal quotation marks omitted). Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. See Brief for HHS

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in No. 13–354, pp. 9–10, n. 4;6 FDA, Birth Control: Medicines to Help You.7
HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.” 45 CFR §147.131(a). That category encompasses “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” See ibid (citing 26 U. S. C. §§6033(a)(3)(A)(i), (iii)). In its Guidelines, HRSA exempted these organizations from the requirement to cover contraceptive services. See http://hrsa.gov/ womensguidelines.
In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as “eligible organizations,” from the contraceptive mandate. See 45 CFR §147.131(b); 78 Fed. Reg. 39874 (2013). An “eligible organization” means a nonprofit organization that “holds itself out as a religious organization” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.” 45 CFR §147.131(b). To qualify for this accommodation, an employer must certify that it is such an organization. §147.131(b)(4). When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan
——————
6 We will use “Brief for HHS” to refer to the Brief for Petitioners in No. 13–354 and the Brief for Respondents in No. 13–356. The federal parties are the Departments of HHS, Treasury, and Labor, and the Secretaries of those Departments.
7 Online at http://www.fda.gov/forconsumers/byaudience/forwomen/ freepublications/ucm313215.htm. The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, see, e.g., 62 Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify them.

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Opinion of the Court
and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. §147.131(c).8 Although this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. 78 Fed. Reg. 39877.9
In addition to these exemptions for religious organizations, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfathered health plans”—those that existed prior to March 23, 2010, and that have not made specified changes after that date—need not comply with many of the Act’s requirements, including the contraceptive mandate. 42 U. S. C. §§18011(a), (e). And employers with fewer than 50 employees are not required to provide health insurance
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8 In the case of self-insured religious organizations entitled to the accommodation, the third-party administrator of the organization must “provide or arrange payments for contraceptive services” for the organization’s employees without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815– 2713A(b)(2)). The regulations establish a mechanism for these thirdparty administrators to be compensated for their expenses by obtaining a reduction in the fee paid by insurers to participate in the federally facilitated exchanges. See 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815–2713A (b)(3)). HHS believes that these fee reductions will not materially affect funding of the exchanges because “payments for contraceptive services will represent only a small portion of total [exchange] user fees.” 78 Fed. Reg. 39882.
9 In a separate challenge to this framework for religious nonprofit organizations, the Court recently ordered that, pending appeal, the eligible organizations be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators. See Little Sisters of the Poor v. Sebelius, 571 U. S. ___ (2014).

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at all. 26 U. S. C. §4980H(c)(2). All told, the contraceptive mandate “presently does not
apply to tens of millions of people.” 723 F. 3d 1114, 1143 (CA10 2013). This is attributable, in large part, to grandfathered health plans: Over one-third of the 149 million nonelderly people in America with employer-sponsored health plans were enrolled in grandfathered plans in 2013. Brief for HHS in No. 13–354, at 53; Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits, 2013 Annual Survey 43, 221.10 The count for employees working for firms that do not have to provide insurance at all because they employ fewer than 50 employees is 34 million workers. See The Whitehouse, Health Reform for Small Businesses: The Affordable Care Act Increases Choice and Saving Money for Small Businesses 1.11
II A
Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages . . . shares humanity with those who conceived it.”12
Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is organized under Pennsylvania
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10 While the Government predicts that this number will decline over time, the total number of Americans working for employers to whom the contraceptive mandate does not apply is still substantial, and there is no legal requirement that grandfathered plans ever be phased out.
11 Online at http : / / www . whitehouse . gov / files / documents / health _ reform_for_small_businesses.pdf.
12 Mennonite Church USA, Statement on Abortion, online at http://www.mennoniteusa.org /resource-center/resources/statements-andresolutions/statement-on-abortion/.

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BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court
law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO.
The Hahns believe that they are required to run their business “in accordance with their religious beliefs and moral principles.” 917 F. Supp. 2d 394, 402 (ED Pa. 2013). To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.” Ibid. (internal quotation marks omitted). The company’s “Vision and Values Statements” affirms that Conestoga endeavors to “ensur[e] a reasonable profit in [a] manner that reflects [the Hahns’] Christian heritage.” App. in No. 13–356, p. 94 (complaint).
As explained in Conestoga’s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that “human life begins at conception.” 724 F. 3d 377, 382, and n. 5 (CA3 2013) (internal quotation marks omitted). It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” Ibid. (internal quotation marks omitted). The Hahns have accordingly excluded from the grouphealth-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifacients. Id., at 382.
The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin application of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDAapproved contraceptives that may operate after the fertilization of an egg.13 These include two forms of emergency
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13 The Hahns and Conestoga also claimed that the contraceptive

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contraception commonly called “morning after” pills and two types of intrauterine devices.14
In opposing the requirement to provide coverage for the contraceptives to which they object, the Hahns argued that “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.” Ibid. The District Court denied a preliminary injunction, see 917 F. Supp. 2d, at 419, and the Third Circuit affirmed in a divided opinion, holding that “forprofit, secular corporations cannot engage in religious exercise” within the meaning of RFRA or the First Amendment. 724 F. 3d, at 381. The Third Circuit also rejected the claims brought by the Hahns themselves because it concluded that the HHS “[m]andate does not impose any requirements on the Hahns” in their personal capacity. Id., at 389.
B
David and Barbara Green and their three children are Christians who own and operate two family businesses. Forty-five years ago, David Green started an arts-andcrafts store that has grown into a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores, and the company has more than 13,000 employees. 723 F. 3d, at 1122. Hobby Lobby is organized as a for-profit corporation under Oklahoma law.
One of David’s sons started an affiliated business, Mardel, which operates 35 Christian bookstores and employs close to 400 people. Ibid. Mardel is also organized as a for-profit corporation under Oklahoma law.
Though these two businesses have expanded over the
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mandate violates the Fifth Amendment and the Administrative Procedure Act, 5 U. S. C. §553, but those claims are not before us.
14 See, e.g., WebMD Health News, New Morning-After Pill Ella Wins FDA Approval, online at http://www.webmd.com/sex/birth-control/news/ 20100813/new-morning-after-pill-ella-wins-fda-approval.

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Opinion of the Court
years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies. Ibid. David serves as the CEO of Hobby Lobby, and his three children serve as the president, vice president, and vice CEO. See Brief for Respondents in No. 13–354, p. 8.15
Hobby Lobby’s statement of purpose commits the Greens to “[h]onoring the Lord in all [they] do by operating the company in a manner consistent with Biblical principles.” App. in No. 13–354, pp. 134–135 (complaint). Each family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. 723 F. 3d, at 1122. In accordance with those commitments, Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so. Id., at 1122; App. in No. 13– 354, at 136–137. The businesses refuse to engage in profitable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.” Ibid. (internal quotation marks omitted).
Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. 723 F. 3d, at 1122. They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved methods of birth control. Id., at 1125. Although their group-health-insurance plan predates the enactment of ACA, it is not a grandfathered plan

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15 The Greens operate Hobby Lobby and Mardel through a management trust, of which each member of the family serves as trustee. 723 F. 3d 1114, 1122 (CA10 2013). The family provided that the trust would also be governed according to their religious principles. Ibid.

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because Hobby Lobby elected not to retain grandfathered status before the contraceptive mandate was proposed. Id., at 1124.
The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to challenge the contraceptive mandate under RFRA and the Free Exercise Clause.16 The District Court denied a preliminary injunction, see 870 F. Supp. 2d 1278 (WD Okla. 2012), and the plaintiffs appealed, moving for initial en banc consideration. The Tenth Circuit granted that motion and reversed in a divided opinion. Contrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens’ two for-profit businesses are “persons” within the meaning of RFRA and therefore may bring suit under that law.
The court then held that the corporations had established a likelihood of success on their RFRA claim. 723 F. 3d, at 1140–1147. The court concluded that the contraceptive mandate substantially burdened the exercise of religion by requiring the companies to choose between “compromis[ing] their religious beliefs” and paying a heavy fee—either “close to $475 million more in taxes every year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26 million” annually if they “drop[ped] health-insurance benefits for all employees.” Id., at 1141.
The court next held that HHS had failed to demonstrate a compelling interest in enforcing the mandate against the Greens’ businesses and, in the alternative, that HHS had failed to prove that enforcement of the mandate was the “least restrictive means” of furthering the Government’s asserted interests. Id., at 1143–1144 (emphasis deleted; internal quotation marks omitted). After concluding that the companies had “demonstrated irreparable harm,” the
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16 They also raised a claim under the Administrative Procedure Act, 5 U. S. C. §553.

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Opinion of the Court
court reversed and remanded for the District Court to consider the remaining factors of the preliminaryinjunction test. Id., at 1147.17
We granted certiorari. 571 U. S. ___ (2013).
III A
RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b) (emphasis added). The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga, and Mardel.
HHS contends that neither these companies nor their owners can even be heard under RFRA. According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannot be heard because the regulations, at least as a formal matter, apply only to the companies and not to the owners as individuals. HHS’s argument would have dramatic consequences.
Consider this Court’s decision in Braunfeld v. Brown,

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17 Given its RFRA ruling, the court declined to address the plaintiffs’ free-exercise claim or the question whether the Greens could bring RFRA claims as individual owners of Hobby Lobby and Mardel. Four judges, however, concluded that the Greens could do so, see 723 F. 3d, at 1156 (Gorsuch, J., concurring); id., at 1184 (Matheson, J., concurring in part and dissenting in part), and three of those judges would have granted plaintiffs a preliminary injunction, see id., at 1156 (Gorsuch, J., concurring).

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366 U. S. 599 (1961) (plurality opinion). In that case, five Orthodox Jewish merchants who ran small retail businesses in Philadelphia challenged a Pennsylvania Sunday closing law as a violation of the Free Exercise Clause. Because of their faith, these merchants closed their shops on Saturday, and they argued that requiring them to remain shut on Sunday threatened them with financial ruin. The Court entertained their claim (although it ruled against them on the merits), and if a similar claim were raised today under RFRA against a jurisdiction still subject to the Act (for example, the District of Columbia, see 42 U. S. C. §2000bb–2(2)), the merchants would be entitled to be heard. According to HHS, however, if these merchants chose to incorporate their businesses—without in any way changing the size or nature of their businesses—they would forfeit all RFRA (and free-exercise) rights. HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.
As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.18 Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS suggests? An examination of RFRA’s text, to which we turn
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18 As discussed, n. 3, supra, in City of Boerne we stated that RFRA, by imposing a least-restrictive-means test, went beyond what was required by our pre-Smith decisions. Although the author of the principal dissent joined the Court’s opinion in City of Boerne, she now claims that the statement was incorrect. Post, at 12. For present purposes, it is unnecessary to adjudicate this dispute. Even if RFRA simply restored the status quo ante, there is no reason to believe, as HHS and the dissent seem to suggest, that the law was meant to be limited to situations that fall squarely within the holdings of pre-Smith cases. See infra, at 25–28.

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Opinion of the Court
in the next part of this opinion, reveals that Congress did no such thing.
As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows:
“General business corporations do not, separate and apart from the actions or belief systems of their indi­ vidual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F. 3d, at 385 (emphasis added).
All of this is true—but quite beside the point. Corpora-

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Opinion of the Court
tions, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.
B 1
As we noted above, RFRA applies to “a person’s” exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1.
Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S. ___, ___ (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard.
We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the meaning of RFRA. See Brief for HHS in No. 13–354, at 17;

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Opinion of the Court
Reply Brief in No. 13–354, at 7–8.19 This concession effectively dispatches any argument
that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons. But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.20 Cf. Clark v. Martinez, 543 U. S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”).
2
The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the phrase “exercise of religion.” According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise religion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion.
Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can
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19 Cf. Brief for Federal Petitioners in O Centro, O. T. 2004, No. 04– 1084, p. II (stating that the organizational respondent was “a New Mexico Corporation”); Brief for Federal Respondent in Hosanna-Tabor, O. T. 2011, No. 10–553, p. 3 (stating that the petitioner was an “ecclesiastical corporation”).
20 Not only does the Government concede that the term “persons” in RFRA includes nonprofit corporations, it goes further and appears to concede that the term might also encompass other artificial entities, namely, general partnerships and unincorporated associations. See Brief for HHS in No. 13–354, at 28, 40.

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be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their religious “autonomy . . . often furthers individual religious freedom as well.” Post, at 15 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment)). But this principle applies equally to for-profit corporations: Furthering their religious freedom also “furthers individual religious freedom.” In these cases, for example, allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.21
If the corporate form is not enough, what about the profit-making objective? In Braunfeld, 366 U. S. 599, we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the “exercise of religion” involves “not only belief and profession but the performance of (or abstention from) physical acts” that are “engaged in for religious reasons.” Smith, 494 U. S., at 877. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition. Thus, a law that “operates so as to make the practice of . . . religious beliefs more expensive” in the context of business activities imposes a burden on the exercise of religion. Braunfeld, supra, at 605; see United States v. Lee, 455 U. S. 252, 257 (1982) (recognizing that “compulsory participation in the social security system interferes with [Amish employers’] free exercise
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21 Although the principal dissent seems to think that Justice Brennan’s statement in Amos provides a ground for holding that for-profit corporations may not assert free-exercise claims, that was not Justice Brennan’s view. See Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, 642 (1961) (dissenting opinion); infra, at 26– 27.

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Opinion of the Court
rights”). If, as Braunfeld recognized, a sole proprietorship that
seeks to make a profit may assert a free-exercise claim,22 why can’t Hobby Lobby, Conestoga, and Mardel do the same?
Some lower court judges have suggested that RFRA does not protect for-profit corporations because the purpose of such corporations is simply to make money.23 This
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22 It is revealing that the principal dissent cannot even bring itself to acknowledge that Braunfeld was correct in entertaining the merchants’ claims. See post, at 19 (dismissing the relevance of Braunfeld in part because “[t]he free exercise claim asserted there was promptly rejected on the merits”).
23 See, e.g., 724 F. 3d, at 385 (“We do not see how a for-profit, ‘artificial being,’ . . . that was created to make money” could exercise religion); Grote v. Sebelius, 708 F. 3d 850, 857 (CA7 2013) (Rovner, J. dissenting) (“So far as it appears, the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere”); Autocam Corp. v. Sebelius, 730 F. 3d 618, 626 (CA7 2013) (“Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as ‘persons’ under RFRA”); see also 723 F. 3d, at 1171–1172 (Briscoe, C. J., dissenting) (“[T]he specific purpose for which [a corporation] is created matters greatly to how it will be categorized and treated under the law” and “it is undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers”).
The principal dissent makes a similar point, stating that “[f]or-profit corporations are different from religious nonprofits in that they use labor to make a profit, rather than to perpetuate the religious values shared by a community of believers.” Post, at 18–19 (internal quotation marks omitted). The first half of this statement is a tautology; forprofit corporations do indeed differ from nonprofits insofar as they seek to make a profit for their owners, but the second part is factually untrue. As the activities of the for-profit corporations involved in these cases show, some for-profit corporations do seek “to perpetuate the religious values shared,” in these cases, by their owners. Conestoga’s Vision and Values Statement declares that the company is dedicated to operating “in [a] manner that reflects our Christian heritage and the highest ethical and moral principles of business.” App. in No. 13–356, p. 94. Similarly, Hobby Lobby’s statement of purpose proclaims that the company “is committed to . . . Honoring the Lord in all we do by

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argument flies in the face of modern corporate law. “Each American jurisdiction today either expressly or by implication authorizes corporations to be formed under its general corporation act for any lawful purpose or business.” 1 J. Cox & T. Hazen, Treatise of the Law of Corporations §4:1, p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher, Cyclopedia of the Law of Corporations §102 (rev. ed. 2010). While it is certainly true that a central objective of forprofit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energyconservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well.
HHS would draw a sharp line between nonprofit corpo-
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operating . . . in a manner consistent with Biblical principles.” App. in No. 13–354, p. 135. The dissent also believes that history is not on our side because even Blackstone recognized the distinction between “ecclesiastical and lay” corporations. Post, at 18. What Blackstone illustrates, however, is that dating back to 1765, there was no sharp divide among corporations in their capacity to exercise religion; Blackstone recognized that even what he termed “lay” corporations might serve “the promotion of piety.” 1 W. Blackstone, Commentaries on the Law of England 458–459 (1765). And whatever may have been the case at the time of Blackstone, modern corporate law (and the law of the States in which these three companies are incorporated) allows forprofit corporations to “perpetuat[e] religious values.”

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Opinion of the Court
rations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave unprotected), but the actual picture is less clear-cut. Not all corporations that decline to organize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals.24 In fact, recognizing the inherent compatibility between establishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corporation,” a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners.25
In any event, the objectives that may properly be pur-

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24 See, e.g., M. Sanders, Joint Ventures Involving Tax-Exempt Organizations 555 (4th ed. 2013) (describing Google.org, which “advance[s] its charitable goals” while operating as a for-profit corporation to be able to “invest in for-profit endeavors, lobby for policies that support its philanthropic goals, and tap Google’s innovative technology and workforce” (internal quotation marks and alterations omitted)); cf. 26 CFR §1.501(c)(3)–1(c)(3).
25 See Benefit Corp Information Center, online at http:// www.benefitcorp.net/state-by-state-legislative-status; e.g., Va. Code Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (“A benefit corporation shall have as one of its purposes the purpose of creating a general public benefit,” and “may identify one or more specific public benefits that it is the purpose of the benefit corporation to create. . . . This purpose is in addition to [the purpose of engaging in any lawful business].” “ ‘Specific public benefit’ means a benefit that serves one or more public welfare, religious, charitable, scientific, literary, or educational purposes, or other purpose or benefit beyond the strict interest of the shareholders of the benefit corporation . . . .”); S. C. Code Ann. §§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012 Cum. Supp.) (similar).

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sued by the companies in these cases are governed by the laws of the States in which they were incorporated— Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue “any lawful purpose” or “act,” including the pursuit of profit in conformity with the owners’ religious principles. 15 Pa. Cons. Stat. §1301 (2001) (“Corporations may be incorporated under this subpart for any lawful purpose or purposes”); Okla. Stat., Tit. 18, §§1002, 1005 (West 2012) (“[E]very corporation, whether profit or not for profit” may “be incorporated or organized . . . to conduct or promote any lawful business or purposes”); see also §1006(A)(3); Brief for State of Oklahoma as Amicus Curiae in No. 13–354.
3
HHS and the principal dissent make one additional argument in an effort to show that a for-profit corporation cannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues that RFRA did no more than codify this Court’s pre-Smith Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protection. This argument has many flaws.
First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion under the First Amendment” was meant to be tied to this Court’s pre-Smith interpretation of that Amendment. When first enacted, RFRA defined the “exercise of religion” to mean “the exercise of religion under the First Amendment”—not the exercise of religion as recognized only by then-existing Supreme Court precedents. 42 U. S. C. §2000bb–2(4) (1994 ed.). When Congress wants to link the meaning of a statutory provision to a body of this Court’s case law, it knows how to do so. See, e.g., Antiterrorism and Effective Death Penalty Act of 1996, 28

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U. S. C. §2254(d)(1) (authorizing habeas relief from a state-court decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”).
Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amendment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the First Amendment, see 42 U. S. C. §2000bb–2(4) (2000 ed.) (incorporating §2000cc–5), and neither HHS nor the principal dissent can explain why Congress did this if it wanted to tie RFRA coverage tightly to the specific holdings of our pre-Smith free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “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.” §2000cc– 3(g). It is simply not possible to read these provisions as restricting the concept of the “exercise of religion” to those practices specifically addressed in our pre-Smith decisions.
Third, the one pre-Smith case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 (1961), the Massachusetts Sunday closing law was challenged by a kosher market that was organized as a forprofit corporation, by customers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked “standing” to assert a free-exercise claim,26 but not one member of the Court expressed agreement with that

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26 See Brief for Appellants in Gallagher, O. T. 1960 No. 11, pp. 16, 28– 31 (arguing that corporation “has no ‘religious belief’ or ‘religious liberty,’ and had no standing in court to assert that its free exercise of religion was impaired”).

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argument. The plurality opinion for four Justices rejected the First Amendment claim on the merits based on the reasoning in Braunfeld, and reserved decision on the question whether the corporation had “standing” to raise the claim. See 366 U. S., at 631. The three dissenters, Justices Douglas, Brennan, and Stewart, found the law unconstitutional as applied to the corporation and the other challengers and thus implicitly recognized their right to assert a free-exercise claim. See id., at 642 (Brennan, J., joined by Stewart, J., dissenting); McGowan v. Maryland, 366 U. S. 420, 578–579 (1961) (Douglas, J., dissenting as to related cases including Gallagher). Finally, Justice Frankfurter’s opinion, which was joined by Justice Harlan, upheld the Massachusetts law on the merits but did not question or reserve decision on the issue of the right of the corporation or any of the other challengers to be heard. See McGowan, 366 U. S., at 521– 522. It is quite a stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty, left for-profit corporations unprotected simply because in Gallagher—the only pre-Smith case in which the issue was raised—a majority of the Justices did not find it necessary to decide whether the kosher market’s corporate status barred it from raising a free-exercise claim.
Finally, the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith?
Presumably in recognition of the weakness of this ar-

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Opinion of the Court
gument, both HHS and the principal dissent fall back on the broader contention that the Nation lacks a tradition of exempting for-profit corporations from generally applicable laws. By contrast, HHS contends, statutes like Title VII, 42 U. S. C. §2000e–19(A), expressly exempt churches and other nonprofit religious institutions but not for-profit corporations. See Brief for HHS in No. 13–356, p. 26. In making this argument, however, HHS did not call to our attention the fact that some federal statutes do exempt categories of entities that include for-profit corporations from laws that would otherwise require these entities to engage in activities to which they object on grounds of conscience. See, e.g., 42 U. S. C. §300a–7(b)(2); §238n(a).27 If Title VII and similar laws show anything, it is that Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations.

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27 The principal dissent points out that “the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage.” Post, at 16, n. 15. The dissent takes this to mean that RFRA did not, in fact, “ope[n] all statutory schemes to religion-based challenges by forprofit corporations” because if it had “there would be no need for a statute-specific, post-RFRA exemption of this sort.” Ibid.
This argument fails to recognize that the protection provided by §238n(a) differs significantly from the protection provided by RFRA. Section 238n(a) flatly prohibits discrimination against a covered healthcare facility for refusing to engage in certain activities related to abortion. If a covered healthcare facility challenged such discrimination under RFRA, by contrast, the discrimination would be unlawful only if a court concluded, among other things, that there was a less restrictive means of achieving any compelling government interest.
In addition, the dissent’s argument proves too much. Section 238n(a) applies evenly to “any health care entity”—whether it is a religious nonprofit entity or a for-profit entity. There is no dispute that RFRA protects religious nonprofit corporations, so if §238n(a) were redundant as applied to for-profit corporations, it would be equally redundant as applied to nonprofits.

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4
Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 13–356, at 30.
These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders— including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.28
HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. On the contrary, the scope of RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category
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28 To qualify for RFRA’s protection, an asserted belief must be “sincere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail. Cf., e.g., United States v. Quaintance, 608 F. 3d 717, 718–719 (CA10 2010).

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Opinion of the Court
that consists primarily of prisoners, and by the time of RLUIPA’s enactment, the propensity of some prisoners to assert claims of dubious sincerity was well documented.29 Nevertheless, after our decision in City of Boerne, Congress enacted RLUIPA to preserve the right of prisoners to raise religious liberty claims. If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Congress limited RFRA’s reach out of concern for the seemingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wanted RFRA to apply to nonprofit corporations, see, Reply Brief in No. 13–354, at 7–8, what reason is there to think that Congress believed that spotting insincere claims would be tougher in cases involving for-profits?
HHS and the principal dissent express concern about the possibility of disputes among the owners of corporations, but that is not a problem that arises because of RFRA or that is unique to this context. The owners of closely held corporations may—and sometimes do— disagree about the conduct of business. 1 Treatise of the Law of Corporations §14:11. And even if RFRA did not exist, the owners of a company might well have a dispute relating to religion. For example, some might want a company’s stores to remain open on the Sabbath in order to make more money, and others might want the stores to close for religious reasons. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. See, e.g., ibid; id., §3:2; Del. Code Ann., Tit. 8, §351 (2011) (providing that certificate of incorporation

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29 See, e.g., Ochs v. Thalacker, 90 F. 3d 293, 296 (CA8 1996); Green v. White, 525 F. Supp. 81, 83–84 (ED Mo. 1981); Abate v. Walton, 1996 WL 5320, *5 (CA9, Jan. 5, 1996); Winters v. State, 549 N. W. 2d 819– 820 (Iowa 1996).

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may provide how “the business of the corporation shall be managed”). Courts will turn to that structure and the underlying state law in resolving disputes.
For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.30
IV
Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. 42 U. S. C. §2000bb– 1(a). We have little trouble concluding that it does.
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30 The principal dissent attaches significance to the fact that the “Senate voted down [a] so-called ‘conscience amendment,’ which would have enabled any employer or insurance provider to deny coverage based on its asserted religious beliefs or moral convictions.” Post, at 6. The dissent would evidently glean from that vote an intent by the Senate to prohibit for-profit corporate employers from refusing to offer contraceptive coverage for religious reasons, regardless of whether the contraceptive mandate could pass muster under RFRA’s standards. But that is not the only plausible inference from the failed amendment—or even the most likely. For one thing, the text of the amendment was “written so broadly that it would allow any employer to deny any health service to any American for virtually any reason—not just for religious objections.” 158 Cong. Rec. S1165 (Mar. 1, 2012) (emphasis added). Moreover, the amendment would have authorized a blanket exemption for religious or moral objectors; it would not have subjected religious-based objections to the judicial scrutiny called for by RFRA, in which a court must consider not only the burden of a requirement on religious adherents, but also the government’s interest and how narrowly tailored the requirement is. It is thus perfectly reasonable to believe that the amendment was voted down because it extended more broadly than the pre-existing protections of RFRA. And in any event, even if a rejected amendment to a bill could be relevant in other contexts, it surely cannot be relevant here, because any “Federal statutory law adopted after November 16, 1993 is subject to [RFRA] unless such law explicitly excludes such application by reference to [RFRA].” 42 U. S. C. §2000bb–3(b) (emphasis added). It is not plausible to find such an explicit reference in the meager legislative history on which the dissent relies.

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BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court
A
As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.
If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual. 26 U. S. C. §4980D. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial.
It is true that the plaintiffs could avoid these assessments by dropping insurance coverage altogether and thus forcing their employees to obtain health insurance on one of the exchanges established under ACA. But if at least one of their full-time employees were to qualify for a subsidy on one of the government-run exchanges, this course would also entail substantial economic consequences. The companies could face penalties of $2,000 per employee each year. §4980H. These penalties would amount to roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel.
B
Although these totals are high, amici supporting HHS

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have suggested that the $2,000 per-employee penalty is actually less than the average cost of providing health insurance, see Brief for Religious Organizations 22, and therefore, they claim, the companies could readily eliminate any substantial burden by forcing their employees to obtain insurance in the government exchanges. We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, see United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60, n. 2 (1981); Bell v. Wolfish, 441 U. S. 520, 532, n. 13 (1979); Knetsch v. United States, 364 U. S. 361, 370 (1960), and there are strong reasons to adhere to that practice in these cases. HHS, which presumably could have compiled the relevant statistics, has never made this argument— not in its voluminous briefing or at oral argument in this Court nor, to our knowledge, in any of the numerous cases in which the issue now before us has been litigated around the country. As things now stand, we do not even know what the Government’s position might be with respect to these amici’s intensely empirical argument.31 For this same reason, the plaintiffs have never had an opportunity to respond to this novel claim that—contrary to their longstanding practice and that of most large employers— they would be better off discarding their employer insurance plans altogether.
Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies have religious reasons for providing health-insurance coverage for their employees. Before the advent of ACA, they were not legally compelled to provide insurance, but they nevertheless did so—in part, no doubt, for conventional business

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31 Indeed, one of HHS’s stated reasons for establishing the religious accommodation was to “encourag[e] eligible organizations to continue to offer health coverage.” 78 Fed. Reg. 39882 (2013) (emphasis added).

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Opinion of the Court
reasons, but also in part because their religious beliefs govern their relations with their employees. See App. to Pet. for Cert. in No. 13–356, p. 11g; App. in No. 13–354, at 139.
Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty. Health insurance is a benefit that employees value. If the companies simply eliminated that benefit and forced employees to purchase their own insurance on the exchanges, without offering additional compensation, it is predictable that the companies would face a competitive disadvantage in retaining and attracting skilled workers. See App. in No. 13–354, at 153.
The companies could attempt to make up for the elimination of a group health plan by increasing wages, but this would be costly. Group health insurance is generally less expensive than comparable individual coverage, so the amount of the salary increase needed to fully compensate for the termination of insurance coverage may well exceed the cost to the companies of providing the insurance. In addition, any salary increase would have to take into account the fact that employees must pay income taxes on wages but not on the value of employer-provided health insurance. 26 U. S. C. §106(a). Likewise, employers can deduct the cost of providing health insurance, see §162(a)(1), but apparently cannot deduct the amount of the penalty that they must pay if insurance is not provided; that difference also must be taken into account. Given these economic incentives, it is far from clear that it would be financially advantageous for an employer to drop coverage and pay the penalty.32
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32 Attempting to compensate for dropped insurance by raising wages would also present administrative difficulties. In order to provide full

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Opinion of the Court
In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the Government— that dropping insurance coverage eliminates the substantial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans.
C
In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated. Brief for HHS in 13–354, pp. 31–34; post, at 22–23. HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue.33 Ibid.
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compensation for employees, the companies would have to calculate the value to employees of the convenience of retaining their employerprovided coverage and thus being spared the task of attempting to find and sign up for a comparable plan on an exchange. And because some but not all of the companies’ employees may qualify for subsidies on an exchange, it would be nearly impossible to calculate a salary increase that would accurately restore the status quo ante for all employees.
33 This argument is not easy to square with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers, such as churches, that have the very same religious objections as the Hahns and Greens and their companies. The connection between what these religious employers would be required

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Opinion of the Court
This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.34 Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the princi-
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to do if not exempted (provide insurance coverage for particular contraceptives) and the ultimate event that they find morally wrong (destruction of an embryo) is exactly the same. Nevertheless, as discussed, HHS and the Labor and Treasury Departments authorized the exemption from the contraceptive mandate of group health plans of certain religious employers, and later expanded the exemption to include certain nonprofit organizations with religious objections to contraceptive coverage. 78 Fed. Reg. 39871. When this was done, the Government made clear that its objective was to “protec[t]” these religious objectors “from having to contract, arrange, pay, or refer for such coverage.” Ibid. Those exemptions would be hard to understand if the plaintiffs’ objections here were not substantial.
34 See, e.g., Oderberg, The Ethics of Co-operation in Wrongdoing, in Modern Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins, Man as Man: The Science and Art of Ethics 353, 355 (1949) (“The general principles governing cooperation” in wrongdoing—i.e., “physical activity (or its omission) by which a person assists in the evil act of another who is the principal agent”—“present troublesome difficulties in application”); 1 H. Davis, Moral and Pastoral Theology 341 (1935) (Cooperation occurs “when A helps B to accomplish an external act by an act that is not sinful, and without approving of what B does”).

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pal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. See, e.g., Smith, 494 U. S., at 887 (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim”); Hernandez v. Commissioner, 490 U. S. 680, 699 (1989); Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 450 (1969).
Moreover, in Thomas v. Review Bd. of Indiana Employ­ ment Security Div., 450 U. S. 707 (1981), we considered and rejected an argument that is nearly identical to the one now urged by HHS and the dissent. In Thomas, a Jehovah’s Witness was initially employed making sheet steel for a variety of industrial uses, but he was later transferred to a job making turrets for tanks. Id., at 710. Because he objected on religious grounds to participating in the manufacture of weapons, he lost his job and sought unemployment compensation. Ruling against the employee, the state court had difficulty with the line that the employee drew between work that he found to be consistent with his religious beliefs (helping to manufacture steel that was used in making weapons) and work that he found morally objectionable (helping to make the weapons themselves). This Court, however, held that “it is not for us to say that the line he drew was an unreasonable one.” Id., at 715.35
Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function . . . in this context is to
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35 The principal dissent makes no effort to reconcile its view about the substantial-burden requirement with our decision in Thomas.

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Opinion of the Court
determine” whether the line drawn reflects “an honest conviction,” id., at 716, and there is no dispute that it does.
HHS nevertheless compares these cases to decisions in which we rejected the argument that the use of general tax revenue to subsidize the secular activities of religious institutions violated the Free Exercise Clause. See Tilton v. Richardson, 403 U. S. 672, 689 (1971) (plurality); Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249 (1968). But in those cases, while the subsidies were clearly contrary to the challengers’ views on a secular issue, namely, proper church-state relations, the challengers never articulated a religious objection to the subsidies. As we put it in Tilton, they were “unable to identify any coercion directed at the practice or exercise of their religious beliefs.” 403 U. S., at 689 (plurality opinion); see Allen, supra, at 249 (“[A]ppellants have not contended that the New York law in any way coerces them as individuals in the practice of their religion”). Here, in contrast, the plaintiffs do assert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity. Because the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.
V
Since the HHS contraceptive mandate imposes a substantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C.

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§2000bb–1(b).
A
HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” Brief for HHS in No. 13– 354, at 46, 49. RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O’Centro, 546 U. S., at 430–431 (quoting §2000bb–1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants”—in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases. O Centro, supra, at 431.
In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing. See Brief for HHS in No. 13–354, at 14–15, 49; see Brief for HHS in No. 13–356, at 10, 48. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut, 381 U. S. 479, 485–486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13–354, at 50 (internal quotation marks omitted).
The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view. As we have noted, many employees—

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Opinion of the Court
those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have no contraceptive coverage without cost sharing at all.
HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be outweighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly significant protections.” 75 Fed. Reg. 34540 (2010). But the contraceptive mandate is expressly excluded from this subset. Ibid.
We find it unnecessary to adjudicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b)(2).
B
The least-restrictive-means standard is exceptionally demanding, see City of Boerne, 521 U. S., at 532, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. See §§2000bb–1(a), (b) (requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person . . . is the least

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restrictive means of furthering [a] compelling governmental interest” (emphasis added)).
The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA, are designed primarily for emergency use. See Birth Control: Medicines to Help You, online at http:// www.fda.gov/forconsumers/byaudience/forwomen/freepubli cations/ucm313215.htm. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurancecoverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. See CBO, Updated Estimates of the Effects of the Insurance Coverage Provisions of the Affordable Care Act, April 2014, p. 2.36 If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this
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36 Online at http://cbo.gov/publication/45231.

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Opinion of the Court
important goal. HHS contends that RFRA does not permit us to take
this option into account because “RFRA cannot be used to require creation of entirely new programs.” Brief for HHS in 13–354, at 15.37 But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may

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37 In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals. It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709, 720 (2005) (applying RLUIPA). That consideration will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest. But it could not reasonably be maintained that any burden on religious exercise, no matter how onerous and no matter how readily the government interest could be achieved through alternative means, is permissible under RFRA so long as the relevant legal obligation requires the religious adherent to confer a benefit on third parties. Otherwise, for example, the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owning restaurants). By framing any Government regulation as benefiting a third party, the Government could turn all regulations into entitlements to which nobody could object on religious grounds, rendering RFRA meaningless. In any event, our decision in these cases need not result in any detrimental effect on any third party. As we explain, see infra, at 43–44, the Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees who are unable to obtain them under their health-insurance plans due to their employers’ religious objections.

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be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: “[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.
In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See supra, at 9–10, and nn. 8–9. Under that accommodation, the organization can selfcertify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1); 26 CFR §§54.9815–2713A(a)(4), (b). If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR §54.9815–2713A(c)(2).38
——————
38 HHS has concluded that insurers that insure eligible employers

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Opinion of the Court
We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.39 At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.40
The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.41 Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal
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opting out of the contraceptive mandate and that are required to pay for contraceptive coverage under the accommodation will not experience an increase in costs because the “costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. 39877. With respect to self-insured plans, the regulations establish a mechanism for the eligible employers’ third-party administrators to obtain a compensating reduction in the fee paid by insurers to participate in the federally facilitated exchanges. HHS believes that this system will not have a material effect on the funding of the exchanges because the “payments for contraceptive services will represent only a small portion of total [federally facilitated exchange] user fees.” Id., at 39882; see 26 CFR §54.9815–2713A(b)(3).
39 See n. 9, supra. 40 The principal dissent faults us for being “noncommital” in refusing to decide a case that is not before us here. Post, at 30. The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address. 41 In the principal dissent’s view, the Government has not had a fair opportunity to address this accommodation, post, at 30. n. 27, but the Government itself apparently believes that when it “provides an exception to a general rule for secular reasons (or for only certain religious reasons), [it] must explain why extending a comparable exception to a specific plaintiff for religious reasons would undermine its compelling interests.” Brief for the United States as Amicus Curiae in Holt v. Hobbs, No. 13–6827, p. 10, now pending before the Court.

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logistical and administrative obstacles,” post, at 28 (internal quotation marks omitted), because their employers’ insurers would be responsible for providing information and coverage, see, e.g., 45 CFR §§147.131(c)–(d); cf. 26 CFR §§54.9815–2713A(b), (d). Ironically, it is the dissent’s approach that would “[i]mped[e] women’s receipt of benefits by ‘requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit,’ ” post, at 28, because the dissent would effectively compel religious employers to drop healthinsurance coverage altogether, leaving their employees to find individual plans on government-run exchanges or elsewhere. This is indeed “scarcely what Congress contemplated.” Ibid.
C
HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction.42 HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.
It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all

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42 Cf. 42 U. S. C. §1396s (Federal “program for distribution of pediatric vaccines” for some uninsured and underinsured children).

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BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court
employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome.
In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurancecoverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
HHS also raises for the first time in this Court the argument that applying the contraceptive mandate to forprofit employers with sincere religious objections is essential to the comprehensive health-insurance scheme that ACA establishes. HHS analogizes the contraceptive mandate to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer, but these cases are quite different. Our holding in Lee turned primarily on the special problems

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Opinion of the Court
associated with a national system of taxation. We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” 455 U. S., at 260. Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expenditures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” Ibid. We observed that “[t]he tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.” Ibid.; see O Centro, 546 U. S., at 435.
Lee was a free-exercise, not a RFRA, case, but if the issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no less restrictive alternative to the categorical requirement to pay taxes. Because of the enormous variety of government expenditures funded by tax dollars, allowing taxpayers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizing exemptions from the contraceptive mandate is very different. ACA does not create a large national pool of tax revenue for use in purchasing healthcare coverage. Rather, individual employers like the plaintiffs purchase insurance for their own employees. And contrary to the principal dissent’s characterization, the employers’ contributions do not necessarily funnel into “undifferentiated funds.” Post, at 23. The accommodation established by HHS requires issuers to have a mechanism by which to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 45 CFR §147.131(c)(2)(ii).

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Opinion of the Court
Recognizing a religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of ACA’s comprehensive scheme in the way that recognizing religious objections to particular expenditures from general tax revenues would.43
In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forcing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. See post, at 32–35. In making this plea, the dissent reiterates a point made forcefully by the Court in Smith. 494 U. S., at 888– 889 (applying the Sherbert test to all free-exercise claims “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind”). But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U. S. C. §2000bb(a)(5). The wisdom of Congress’s judgment on this
——————
43 HHS highlights certain statements in the opinion in Lee that it regards as supporting its position in these cases. In particular, HHS notes the statement that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” 455 U. S., at 261. Lee was a free exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, is squarely inconsistent with the plain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, the Government does not have a free hand in imposing obligations that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict RFRA test is met.

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matter is not our concern. Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.
* * *
The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.
The judgment of the Tenth Circuit in No. 13–354 is affirmed; the judgment of the Third Circuit in No. 13–356 is reversed, and that case is remanded for further proceedings consistent with this opinion.
It is so ordered.

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1

KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–354 and 13–356
_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354

v.

HOBBY LOBBY STORES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 30, 2014]

JUSTICE KENNEDY, concurring.
It seems to me appropriate, in joining the Court’s opinion, to add these few remarks. At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent. The Court and the dissent disagree on the proper interpretation of the Religious Freedom and Restoration Act of 1993 (RFRA), but do agree on the purpose of that statute. 42 U. S. C. §2000bb et seq. It is to ensure that interests in religious freedom are protected. Ante, at 5–6; post, at 8–9 (GINSBURG, J., dissenting).
In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this

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BURWELL v. HOBBY LOBBY STORES, INC.

KENNEDY, J., concurring
course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exercise in this sense implicates more than just freedom of belief. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940). It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community. But in a complex society and an era of pervasive governmental regulation, defining the proper realm for free exercise can be difficult. In these cases the plaintiffs deem it necessary to exercise their religious beliefs within the context of their own closely held, for-profit corporations. They claim protection under RFRA, the federal statute discussed with care and in detail in the Court’s opinion.
As the Court notes, under our precedents, RFRA imposes a “ ‘stringent test.’ ” Ante, at 6 (quoting City of Boerne v. Flores, 521 U. S. 507, 533 (1997)). The Government must demonstrate that the application of a substantial burden to a person’s exercise of religion “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b).
As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee. Ante, at 39; see, e.g., Brief for HHS in No. 13–354, pp. 14–15. There are many medical conditions for which pregnancy is contraindicated. See, e.g., id., at 47. It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees. Ante, at 40.

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KENNEDY, J., concurring
But the Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That framework is one that HHS has itself devised, that the plaintiffs have not criticized with a specific objection that has been considered in detail by the courts in this litigation, and that is less restrictive than the means challenged by the plaintiffs in these cases. Ante, at 9–10, and n. 9, 43–44.
The means the Government chose is the imposition of a direct mandate on the employers in these cases. Ante, at 8–9. But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. See ante, at 9–10, and n. 9, 43–44. The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs. See ante, at 44.
On this record and as explained by the Court, the Government has not met its burden of showing that it cannot accommodate the plaintiffs’ similar religious objections under this established framework. RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.
The parties who were the plaintiffs in the District Courts argue that the Government could pay for the methods that are found objectionable. Brief for Respond-

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KENNEDY, J., concurring
ents in No. 13–354, p. 58. In discussing this alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program. Ante, at 41–43. The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints. In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place. Ante, at 43–44.
“[T]he American community is today, as it long has been, a rich mosaic of religious faiths.” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (KAGAN, J., dissenting) (slip op., at 15). Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise. Ante, at 45–46.
For these reasons and others put forth by the Court, I join its opinion.

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1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–354 and 13–356
_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354

v.

HOBBY LOBBY STORES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 30, 2014]

JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR joins, and with whom JUSTICE BREYER and JUSTICE KAGAN join as to all but Part III–C–1, dissenting.
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based optouts impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a

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GINSBURG, J., dissenting
religion-based exemption, the government, i.e., the general public, can pick up the tab. See ante, at 41–43.1
The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. See infra, at 6–8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
I
“The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 856 (1992). Congress acted on that understand-
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1 The Court insists it has held none of these things, for another less restrictive alternative is at hand: extending an existing accommodation, currently limited to religious nonprofit organizations, to encompass commercial enterprises. See ante, at 3–4. With that accommodation extended, the Court asserts, “women would still be entitled to all [Food and Drug Administration]-approved contraceptives without cost sharing.” Ante, at 4. In the end, however, the Court is not so sure. In stark contrast to the Court’s initial emphasis on this accommodation, it ultimately declines to decide whether the highlighted accommodation is even lawful. See ante, at 44 (“We do not decide today whether an approach of this type complies with RFRA . . . .”).

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GINSBURG, J., dissenting
ing when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction, the Department of Health and Human Services (HHS), in consultation with public health experts, promulgated regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). The genesis of this coverage should enlighten the Court’s resolution of these cases.
A
The Affordable Care Act (ACA), in its initial form, specified three categories of preventive care that health plans must cover at no added cost to the plan participant or beneficiary.2 Particular services were to be recommended by the U. S. Preventive Services Task Force, an independent panel of experts. The scheme had a large gap, however; it left out preventive services that “many women’s health advocates and medical professionals believe are critically important.” 155 Cong. Rec. 28841 (2009) (statement of Sen. Boxer). To correct this oversight, Senator Barbara Mikulski introduced the Women’s Health Amendment, which added to the ACA’s minimum coverage requirements a new category of preventive services specific to women’s health.
Women paid significantly more than men for preventive care, the amendment’s proponents noted; in fact, cost

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2 See 42 U. S. C. §300gg–13(a)(1)–(3) (group health plans must provide coverage, without cost sharing, for (1) certain “evidence-based items or services” recommended by the U. S. Preventive Services Task Force; (2) immunizations recommended by an advisory committee of the Centers for Disease Control and Prevention; and (3) “with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration”).

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GINSBURG, J., dissenting
barriers operated to block many women from obtaining needed care at all. See, e.g., id., at 29070 (statement of Sen. Feinstein) (“Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.”); id., at 29302 (statement of Sen. Mikulski) (“copayments are [often] so high that [women] avoid getting [preventive and screening services] in the first place”). And increased access to contraceptive services, the sponsors comprehended, would yield important public health gains. See, e.g., id., at 29768 (statement of Sen. Durbin) (“This bill will expand health insurance coverage to the vast majority of [the 17 million women of reproductive age in the United States who are uninsured] . . . . This expanded access will reduce unintended pregnancies.”).
As altered by the Women’s Health Amendment’s passage, the ACA requires new insurance plans to include coverage without cost sharing of “such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)],” a unit of HHS. 42 U. S. C. §300gg–13(a)(4). Thus charged, the HRSA developed recommendations in consultation with the Institute of Medicine (IOM). See 77 Fed. Reg. 8725–8726 (2012).3 The IOM convened a group of independent experts, including “specialists in disease prevention [and] women’s health”; those experts prepared a report evaluating the efficacy of a number of preventive services. IOM, Clinical Prevention Services for Women: Closing the Gaps 2 (2011) (hereinafter IOM Report). Consistent with the findings of “[n]umerous health professional associations” and other organizations, the IOM experts determined that preven-

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3 The IOM is an arm of the National Academy of Sciences, an organization Congress established “for the explicit purpose of furnishing advice to the Government.” Public Citizen v. Department of Justice, 491 U. S. 440, 460, n. 11 (1989) (internal quotation marks omitted).

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GINSBURG, J., dissenting
tive coverage should include the “full range” of FDAapproved contraceptive methods. Id., at 10. See also id., at 102–110.
In making that recommendation, the IOM’s report expressed concerns similar to those voiced by congressional proponents of the Women’s Health Amendment. The report noted the disproportionate burden women carried for comprehensive health services and the adverse health consequences of excluding contraception from preventive care available to employees without cost sharing. See, e.g., id., at 19 (“[W]omen are consistently more likely than men to report a wide range of cost-related barriers to receiving . . . medical tests and treatments and to filling prescriptions for themselves and their families.”); id., at 103–104, 107 (pregnancy may be contraindicated for women with certain medical conditions, for example, some congenital heart diseases, pulmonary hypertension, and Marfan syndrome, and contraceptives may be used to reduce risk of endometrial cancer, among other serious medical conditions); id., at 103 (women with unintended pregnancies are more likely to experience depression and anxiety, and their children face “increased odds of preterm birth and low birth weight”).
In line with the IOM’s suggestions, the HRSA adopted guidelines recommending coverage of “[a]ll [FDA-] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”4 Thereafter, HHS, the Department of Labor, and the Department of Treasury promulgated regulations requiring group health plans to include coverage of the contraceptive services recommended in the
——————
4 HRSA, HHS, Women’s Preventive Services Guidelines, available at http://www.hrsa.gov/womensguidelines/ (all Internet materials as visited June 27, 2014, and available in Clerk of Court’s case file), reprinted in App. to Brief for Petitioners in No. 13–354, pp. 43–44a. See also 77 Fed. Reg. 8725–8726 (2012).

6

BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
HRSA guidelines, subject to certain exceptions, described infra, at 25–27.5 This opinion refers to these regulations as the contraceptive coverage requirement.
B
While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny coverage based on its asserted “religious beliefs or moral convictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see id., at S1162–S1173 (Mar. 1, 2012) (debate and vote).6 That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.” Id., at S1127 (Feb. 29, 2012). Rejecting the “conscience amendment,” Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers.
II
Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga7 might assert is foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). In Smith, two members of the Native American Church were dis-
——————
5 45 CFR §147.130(a)(1)(iv) (2013) (HHS); 29 CFR §2590.715– 2713(a)(1)(iv) (2013) (Labor); 26 CFR §54.9815–2713(a)(1)(iv) (2013) (Treasury).
6 Separating moral convictions from religious beliefs would be of questionable legitimacy. See Welsh v. United States, 398 U. S. 333, 357–358 (1970) (Harlan, J., concurring in result).
7 As the Court explains, see ante, at 11–16, these cases arise from two separate lawsuits, one filed by Hobby Lobby, its affiliated business (Mardel), and the family that operates these businesses (the Greens); the other filed by Conestoga and the family that owns and controls that business (the Hahns). Unless otherwise specified, this opinion refers to the respective groups of plaintiffs as Hobby Lobby and Conestoga.

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7

GINSBURG, J., dissenting
missed from their jobs and denied unemployment benefits because they ingested peyote at, and as an essential element of, a religious ceremony. Oregon law forbade the consumption of peyote, and this Court, relying on that prohibition, rejected the employees’ claim that the denial of unemployment benefits violated their free exercise rights. The First Amendment is not offended, Smith held, when “prohibiting the exercise of religion . . . is not the object of [governmental regulation] but merely the incidental effect of a generally applicable and otherwise valid provision.” Id., at 878; see id., at 878–879 (“an individual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate”). The ACA’s contraceptive coverage requirement applies generally, it is “otherwise valid,” it trains on women’s well being, not on the exercise of religion, and any effect it has on such exercise is incidental.
Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby Lobby and Conestoga seek. Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.8

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8 See Wisconsin v. Yoder, 406 U. S. 205, 230 (1972) (“This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.”); Estate of Thornton v. Caldor, Inc., 472 U. S. 703 (1985) (invalidating state statute requiring employers to accommodate an employee’s Sabbath observance where that statute failed to take into account the burden such an accommodation would impose on the employer or other employees). Notably, in construing the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U. S. C. §2000cc et seq., the Court has cautioned that “adequate account” must be taken of “the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709, 720 (2005); see id., at 722 (“an accommodation must be measured so that it does not override other significant interests”). A

8

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The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 565, 85 P. 3d 67, 93 (2004) (“We are unaware of any decision in which . . . [the U. S. Supreme Court] has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.”). In sum, with respect to free exercise claims no less than free speech claims, “ ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ ” Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919).
III A
Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government shows that application of the burden is “the least restrictive means” to further a “compelling governmental interest.” 42 U. S. C. §2000bb–1(a), (b)(2). In RFRA, Congress “adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 424 (2006).
RFRA’s purpose is specific and written into the statute itself. The Act was crafted to “restore the compelling
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balanced approach is all the more in order when the Free Exercise Clause itself is at stake, not a statute designed to promote accommodation to religious beliefs and practices.

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interest test as set forth in Sherbert v. Verner, 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” §2000bb(b)(1).9 See also §2000bb(a)(5) (“[T]he compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”); ante, at 48 (agreeing that the pre-Smith compelling interest test is “workable” and “strike[s] sensible balances”).
The legislative history is correspondingly emphatic on RFRA’s aim. See, e.g., S. Rep. No. 103–111, p. 12 (1993) (hereinafter Senate Report) (RFRA’s purpose was “only to overturn the Supreme Court’s decision in Smith,” not to “unsettle other areas of the law.”); 139 Cong. Rec. 26178 (1993) (statement of Sen. Kennedy) (RFRA was “designed to restore the compelling interest test for deciding free exercise claims.”). In line with this restorative purpose, Congress expected courts considering RFRA claims to “look to free exercise cases decided prior to Smith for guidance.” Senate Report 8. See also H. R. Rep. No. 103– 88, pp. 6–7 (1993) (hereinafter House Report) (same). In short, the Act reinstates the law as it was prior to Smith, without “creat[ing] . . . new rights for any religious practice or for any potential litigant.” 139 Cong. Rec. 26178 (statement of Sen. Kennedy). Given the Act’s moderate purpose, it is hardly surprising that RFRA’s enactment in 1993 provoked little controversy. See Brief for Senator Murray et al. as Amici Curiae 8 (hereinafter Senators
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9 Under Sherbert and Yoder, the Court “requir[ed] the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 894 (1990) (O’Connor, J., concurring in judgment).

10

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GINSBURG, J., dissenting
Brief ) (RFRA was approved by a 97-to-3 vote in the Senate and a voice vote in the House of Representatives).
B
Despite these authoritative indications, the Court sees RFRA as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence. See ante, at 6, n. 3, 7, 17, 25–27. To support its conception of RFRA as a measure detached from this Court’s decisions, one that sets a new course, the Court points first to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U. S. C. §2000cc et seq., which altered RFRA’s definition of the term “exercise of religion.” RFRA, as originally enacted, defined that term to mean “the exercise of religion under the First Amendment to the Constitution.” §2000bb–2(4) (1994 ed.). See ante, at 6–7. As amended by RLUIPA, RFRA’s definition now includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000bb–2(4) (2012 ed.) (crossreferencing §2000cc–5). That definitional change, according to the Court, reflects “an obvious effort to effect a complete separation from First Amendment case law.” Ante, at 7.
The Court’s reading is not plausible. RLUIPA’s alteration clarifies that courts should not question the centrality of a particular religious exercise. But the amendment in no way suggests that Congress meant to expand the class of entities qualified to mount religious accommodation claims, nor does it relieve courts of the obligation to inquire whether a government action substantially burdens a religious exercise. See Rasul v. Myers, 563 F. 3d 527, 535 (CADC 2009) (Brown, J., concurring) (“There is no doubt that RLUIPA’s drafters, in changing the definition of ‘exercise of religion,’ wanted to broaden the scope of the kinds of practices protected by RFRA, not increase the universe of individuals protected by RFRA.”); H. R. Rep.

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No. 106–219, p. 30 (1999). See also Gilardi v. United States Dept. of Health and Human Servs., 733 F. 3d 1208, 1211 (CADC 2013) (RFRA, as amended, “provides us with no helpful definition of ‘exercise of religion.’ ”); Henderson v. Kennedy, 265 F. 3d 1072, 1073 (CADC 2001) (“The [RLUIPA] amendments did not alter RFRA’s basic prohibition that the ‘[g]overnment shall not substantially burden a person’s exercise of religion.’ ”).10
Next, the Court highlights RFRA’s requirement that the government, if its action substantially burdens a person’s religious observance, must demonstrate that it chose the least restrictive means for furthering a compelling interest. “[B]y imposing a least-restrictive-means test,” the Court suggests, RFRA “went beyond what was required by our pre-Smith decisions.” Ante, at 17, n. 18 (citing City of Boerne v. Flores, 521 U. S. 507 (1997)). See also ante, at 6, n. 3. But as RFRA’s statements of purpose and legislative history make clear, Congress intended only to restore, not to scrap or alter, the balancing test as this Court had applied it pre-Smith. See supra, at 8–9. See also Senate Report 9 (RFRA’s “compelling interest test generally should not be construed more stringently or more leniently than it was prior to Smith.”); House Report 7 (same).
The Congress that passed RFRA correctly read this Court’s pre-Smith case law as including within the “compelling interest test” a “least restrictive means” requirement. See, e.g., Senate Report 5 (“Where [a substantial] burden is placed upon the free exercise of religion, the Court ruled [in Sherbert], the Government must demon-
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10 RLUIPA, the Court notes, includes a provision directing that “[t]his chapter [i.e., RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of [the Act] and the Constitution.” 42 U. S. C. §2000cc–3(g); see ante, at 6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of religion,” as RLUIPA does, but contains no omnibus rule of construction governing the statute in its entirety.

12

BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
strate that it is the least restrictive means to achieve a compelling governmental interest.”). And the view that the pre-Smith test included a “least restrictive means” requirement had been aired in testimony before the Senate Judiciary Committee by experts on religious freedom. See, e.g., Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 78–79 (1993) (statement of Prof. Douglas Laycock).
Our decision in City of Boerne, it is true, states that the least restrictive means requirement “was not used in the pre-Smith jurisprudence RFRA purported to codify.” See ante, at 6, n. 3, 17, n. 18. As just indicated, however, that statement does not accurately convey the Court’s preSmith jurisprudence. See Sherbert, 374 U. S., at 407 (“[I]t would plainly be incumbent upon the [government] to demonstrate that no alternative forms of regulation would combat [the problem] without infringing First Amendment rights.”); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 718 (1981) (“The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”). See also Berg, The New Attacks on Religious Freedom Legislation and Why They Are Wrong, 21 Cardozo L. Rev. 415, 424 (1999) (“In Boerne, the Court erroneously said that the least restrictive means test ‘was not used in the pre-Smith jurisprudence.’ ”).11
C
With RFRA’s restorative purpose in mind, I turn to the

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11 The Court points out that I joined the majority opinion in City of Boerne and did not then question the statement that “least restrictive means . . . was not used [pre-Smith].” Ante, at 17, n. 18. Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” Massachusetts v. United States, 333 U. S. 611, 639–640 (1948) (dissenting opinion).

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Act’s application to the instant lawsuits. That task, in view of the positions taken by the Court, requires consideration of several questions, each potentially dispositive of Hobby Lobby’s and Conestoga’s claims: Do for-profit corporations rank among “person[s]” who “exercise . . . religion”? Assuming that they do, does the contraceptive coverage requirement “substantially burden” their religious exercise? If so, is the requirement “in furtherance of a compelling government interest”? And last, does the requirement represent the least restrictive means for furthering that interest?
Misguided by its errant premise that RFRA moved beyond the pre-Smith case law, the Court falters at each step of its analysis.
1
RFRA’s compelling interest test, as noted, see supra, at 8, applies to government actions that “substantially burden a person’s exercise of religion.” 42 U. S. C. §2000bb– 1(a) (emphasis added). This reference, the Court submits, incorporates the definition of “person” found in the Dictionary Act, 1 U. S. C. §1, which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” See ante, at 19–20. The Dictionary Act’s definition, however, controls only where “context” does not “indicat[e] otherwise.” §1. Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” 42 U. S. C. §2000bb–1(a) (emphasis added). See also §§2000bb–2(4), 2000cc–5(7)(a).12 Whether

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12 As earlier explained, see supra, at 10–11, RLUIPA’s amendment of the definition of “exercise of religion” does not bear the weight the Court places on it. Moreover, it is passing strange to attribute to RLUIPA any purpose to cover entities other than “religious assembl[ies] or institution[s].” 42 U. S. C. §2000cc(a)(1). But cf. ante, at 26. That law applies to land-use regulation. §2000cc(a)(1). To permit commercial enterprises to challenge zoning and other land-use regula-

14

BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
a corporation qualifies as a “person” capable of exercising religion is an inquiry one cannot answer without reference to the “full body” of pre-Smith “free-exercise caselaw.” Gilardi, 733 F. 3d, at 1212. There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations.
Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466 (2010) (opinion concurring in part and dissenting in part).
The First Amendment’s free exercise protections, the

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tions under RLUIPA would “dramatically expand the statute’s reach” and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26.
13 The Court regards Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617 (1961), as “suggest[ing] . . . that for-profit corporations possess [free-exercise] rights.” Ante, at 26–27. See also ante, at 21, n. 21. The suggestion is barely there. True, one of the five challengers to the Sunday closing law assailed in Gallagher was a corporation owned by four Orthodox Jews. The other challengers were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation. Accordingly, the plurality stated it could pretermit the question “whether appellees ha[d] standing” because Braunfeld v. Brown, 366 U. S. 599 (1961), which upheld a similar closing law, was fatal to their claim on the merits. 366 U. S., at 631.

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Court has indeed recognized, shelter churches and other nonprofit religion-based organizations.14 “For many individuals, religious activity derives meaning in large measure from participation in a larger religious community,” and “furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment). The Court’s “special solicitude to the rights of religious organizations,” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 14), however, is just that. No such solicitude is traditional for commercial organizations.15 Indeed, until today, religious

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14 See, e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___ (2012); Gonzales v. O Centro Espírita Benefi­ cente União do Vegetal, 546 U. S. 418 (2006); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993); Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U. S. 378 (1990).
15 Typically, Congress has accorded to organizations religious in character religion-based exemptions from statutes of general application. E.g., 42 U. S. C. §2000e–1(a) (Title VII exemption from prohibition against employment discrimination based on religion for “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on . . . of its activities”); 42 U. S. C. §12113(d)(1) (parallel exemption in Americans With Disabilities Act of 1990). It can scarcely be maintained that RFRA enlarges these exemptions to allow Hobby Lobby and Conestoga to hire only persons who share the religious beliefs of the Greens or Hahns. Nor does the Court suggest otherwise. Cf. ante, at 28.
The Court does identify two statutory exemptions it reads to cover for-profit corporations, 42 U. S. C. §§300a–7(b)(2) and 238n(a), and infers from them that “Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations,” ante, at 28. The Court’s inference is unwarranted. The exemptions the Court cites cover certain medical personnel who object to performing or assisting with abortions. Cf. ante, at 28, n. 27 (“the protection provided by §238n(a) differs significantly from the protection provided by

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BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
exemptions had never been extended to any entity operating in “the commercial, profit-making world.” Amos, 483 U. S., at 337.16
The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the

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RFRA”). Notably, the Court does not assert that these exemptions have in fact been afforded to for-profit corporations. See §238n(c) (“health care entity” covered by exemption is a term defined to include “an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions”); Tozzi, Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence?, 48 J. Catholic Legal Studies 269, 296, n. 133 (2009) (“Catholic physicians, but not necessarily hospitals, . . . may be able to invoke [§238n(a)] . . . .”); cf. S. 137, 113th Cong., 1st Sess. (2013) (as introduced) (Abortion Non-Discrimination Act of 2013, which would amend the definition of “health care entity” in §238n to include “hospital[s],” “health insurance plan[s],” and other health care facilities). These provisions are revealing in a way that detracts from one of the Court’s main arguments. They show that Congress is not content to rest on the Dictionary Act when it wishes to ensure that particular entities are among those eligible for a religious accommodation.
Moreover, the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, §515, 110 Stat. 1321–245. If, as the Court believes, RFRA opened all statutory schemes to religionbased challenges by for-profit corporations, there would be no need for a statute-specific, post-RFRA exemption of this sort.
16 That is not to say that a category of plaintiffs, such as resident aliens, may bring RFRA claims only if this Court expressly “addressed their [free-exercise] rights before Smith.” Ante, at 27. Continuing with the Court’s example, resident aliens, unlike corporations, are flesh-andblood individuals who plainly count as persons sheltered by the First Amendment, see United States v. Verdugo-Urquidez, 494 U. S. 259, 271 (1990) (citing Bridges v. Wixon, 326 U. S. 135, 148 (1945)), and a fortiori, RFRA.

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work force of for-profit corporations. See 42 U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Air­ lines, Inc. v. Hardison, 432 U. S. 63, 80–81 (1977) (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.17 One can only wonder why the Court shuts this key difference from sight.
Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre-Smith precedent Congress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes”). The text of RFRA makes no such statement and the legislative history does not so much as mention forprofit corporations. See Hobby Lobby Stores, Inc. v. Sebe­ lius, 723 F. 3d 1114, 1169 (CA10 2013) (Briscoe, C. J., concurring in part and dissenting in part) (legislative record lacks “any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corporations”). See also Senators Brief 10–13 (none of the
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17 I part ways with JUSTICE KENNEDY on the context relevant here. He sees it as the employers’ “exercise [of] their religious beliefs within the context of their own closely held, for-profit corporations.” Ante, at 2 (concurring opinion). See also ante, at 45–46 (opinion of the Court) (similarly concentrating on religious faith of employers without reference to the different beliefs and liberty interests of employees). I see as the relevant context the employers’ asserted right to exercise religion within a nationwide program designed to protect against health hazards employees who do not subscribe to their employers’ religious beliefs.

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cases cited in House or Senate Judiciary Committee reports accompanying RFRA, or mentioned during floor speeches, recognized the free exercise rights of for-profit corporations).
The Court notes that for-profit corporations may support charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations. See ante, at 20–25. See also ante, at 3 (KENNEDY, J., concurring) (criticizing the Government for “distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation”).18 Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiastical and lay” corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. See Terrett v. Taylor, 9 Cranch 43, 49 (1815) (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645 (discussing “eleemosynary” corporations, including those “created for the promotion of religion”). To reiterate, “for-profit corporations are different from religious non-
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18 According to the Court, the Government “concedes” that “nonprofit corporation[s]” are protected by RFRA. Ante, at 19. See also ante, at 20, 24, 30. That is not an accurate description of the Government’s position, which encompasses only “churches,” “religious institutions,” and “religious non-profits.” Brief for Respondents in No. 13–356, p. 28 (emphasis added). See also Reply Brief in No. 13–354, p. 8 (“RFRA incorporates the longstanding and common-sense distinction between religious organizations, which sometimes have been accorded accommodations under generally applicable laws in recognition of their accepted religious character, and for-profit corporations organized to do business in the commercial world.”).

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profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].” Gilardi, 733 F. 3d, at 1242 (Edwards, J., concurring in part and dissenting in part) (emphasis deleted).
Citing Braunfeld v. Brown, 366 U. S. 599 (1961), the Court questions why, if “a sole proprietorship that seeks to make a profit may assert a free-exercise claim, [Hobby Lobby and Conestoga] can’t . . . do the same?” Ante, at 22 (footnote omitted). See also ante, at 16–17. But even accepting, arguendo, the premise that unincorporated business enterprises may gain religious accommodations under the Free Exercise Clause, the Court’s conclusion is unsound. In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation. In any event, Braunfeld is hardly impressive authority for the entitlement Hobby Lobby and Conestoga seek. The free exercise claim asserted there was promptly rejected on the merits.
The Court’s determination that RFRA extends to forprofit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.19 Little doubt that RFRA
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19 The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for “it seems unlikely” that large corporations “will often assert RFRA claims.” Ante, at 29. Perhaps so, but as Hobby Lobby’s case demonstrates, such claims are indeed pursued by large corporations, employing thousands of persons of different faiths, whose ownership is not diffuse. “Closely held” is not synonymous with “small.” Hobby Lobby is

20

BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.
2
Even if Hobby Lobby and Conestoga were deemed RFRA “person[s],” to gain an exemption, they must demonstrate that the contraceptive coverage requirement “substantially burden[s] [their] exercise of religion.” 42 U. S. C. §2000bb–1(a). Congress no doubt meant the modifier “substantially” to carry weight. In the original draft of RFRA, the word “burden” appeared unmodified. The word “substantially” was inserted pursuant to a clarifying amendment offered by Senators Kennedy and Hatch. See
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hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons. See Forbes, America’s Largest Private Companies 2013, available at http://www.forbes.com/ largest-private-companies/.
Nor does the Court offer any instruction on how to resolve the disputes that may crop up among corporate owners over religious values and accommodations. The Court is satisfied that “[s]tate corporate law provides a ready means for resolving any conflicts,” ante, at 30, but the authorities cited in support of that proposition are hardly helpful. See Del. Code Ann., Tit. 8, §351 (2011) (certificates of incorporation may specify how the business is managed); 1 J. Cox & T. Hazen, Treatise on the Law of Corporations §3:2 (3d ed. 2010) (section entitled “Selecting the state of incorporation”); id., §14:11 (observing that “[d]espite the frequency of dissension and deadlock in close corporations, in some states neither legislatures nor courts have provided satisfactory solutions”). And even if a dispute settlement mechanism is in place, how is the arbiter of a religion-based intracorporate controversy to resolve the disagreement, given this Court’s instruction that “courts have no business addressing [whether an asserted religious belief] is substantial,” ante, at 36?

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139 Cong. Rec. 26180. In proposing the amendment, Senator Kennedy stated that RFRA, in accord with the Court’s pre-Smith case law, “does not require the Government to justify every action that has some effect on religious exercise.” Ibid.
The Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belie[f ] that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” Ante, at 36.20 I agree with the Court that the Green and Hahn families’ religious convictions regarding contraception are sincerely held. See Thomas, 450 U. S., at 715 (courts are not to question where an individual “dr[aws] the line” in defining which practices run afoul of her religious beliefs). See also 42 U. S. C. §§2000bb–1(a), 2000bb–2(4), 2000cc–5(7)(A).21 But those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, distinguishes between “factual allegations that [plaintiffs’]
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20 The Court dismisses the argument, advanced by some amici, that the $2,000-per-employee tax charged to certain employers that fail to provide health insurance is less than the average cost of offering health insurance, noting that the Government has not provided the statistics that could support such an argument. See ante, at 32–34. The Court overlooks, however, that it is not the Government’s obligation to prove that an asserted burden is insubstantial. Instead, it is incumbent upon plaintiffs to demonstrate, in support of a RFRA claim, the substantiality of the alleged burden.
21 The Court levels a criticism that is as wrongheaded as can be. In no way does the dissent “tell the plaintiffs that their beliefs are flawed.” Ante, at 37. Right or wrong in this domain is a judgment no Member of this Court, or any civil court, is authorized or equipped to make. What the Court must decide is not “the plausibility of a religious claim,” ante, at 37 (internal quotation marks omitted), but whether accommodating that claim risks depriving others of rights accorded them by the laws of the United States. See supra, at 7–8; infra, at 27.

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beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion . . . that [plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake. Kaemmerling v. Lappin, 553 F. 3d 669, 679 (CADC 2008).
That distinction is a facet of the pre-Smith jurisprudence RFRA incorporates. Bowen v. Roy, 476 U. S. 693 (1986), is instructive. There, the Court rejected a free exercise challenge to the Government’s use of a Native American child’s Social Security number for purposes of administering benefit programs. Without questioning the sincerity of the father’s religious belief that “use of [his daughter’s Social Security] number may harm [her] spirit,” the Court concluded that the Government’s internal uses of that number “place[d] [no] restriction on what [the father] may believe or what he may do.” Id., at 699. Recognizing that the father’s “religious views may not accept” the position that the challenged uses concerned only the Government’s internal affairs, the Court explained that “for the adjudication of a constitutional claim, the Constitution, rather than an individual’s religion, must supply the frame of reference.” Id., at 700–701, n. 6. See also Hernandez v. Commissioner, 490 U. S. 680, 699 (1989) (distinguishing between, on the one hand, “question[s] [of] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds,” and, on the other, “whether the alleged burden imposed [by the challenged government action] is a substantial one”). Inattentive to this guidance, today’s decision elides entirely the distinction between the sincerity of a challenger’s religious belief and the substantiality of the burden placed on the challenger.
Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The re-

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quirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans. Those plans, in order to comply with the ACA, see supra, at 3–6, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services.
Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “[n]o individual decision by an employee and her physician—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employer’s] decision or action.” Grote v. Sebelius, 708 F. 3d 850, 865 (CA7 2013) (Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be “substantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.
3
Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage

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GINSBURG, J., dissenting
for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children. See IOM Report 102–107. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. See Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 14–15. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain. Brief for Ovarian Cancer National Alliance et al. as Amici Curiae 4, 6–7, 15– 16; 78 Fed. Reg. 39872 (2013); IOM Report 107.
That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests. Notably, the corporations exclude intrauterine devices (IUDs), devices significantly more effective, and significantly more expensive than other contraceptive methods. See id., at 105.22 Moreover, the Court’s reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contraceptives. See Tr. of Oral Arg. 38–39 (counsel for Hobby Lobby acknowledged that his “argument . . . would apply just as well if the employer said ‘no contraceptives’ ” (internal quotation marks added)).
Perhaps the gravity of the interests at stake has led the
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22 IUDs, which are among the most reliable forms of contraception, generally cost women more than $1,000 when the expenses of the office visit and insertion procedure are taken into account. See Eisenberg, McNicholas, & Peipert, Cost as a Barrier to Long-Acting Reversible Contraceptive (LARC) Use in Adolescents, 52 J. Adolescent Health S59, S60 (2013). See also Winner et al., Effectiveness of Long-Acting Reversible Contraception, 366 New Eng. J. Medicine 1998, 1999 (2012).

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Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. See ante, at 40.23 It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage, Brief for Guttmacher Institute et al. as Amici Curiae 16; that almost one-third of women would change their contraceptive method if costs were not a factor, Frost & Darroch, Factors Associated With Contraceptive Choice and Inconsistent Method Use, United States, 2004, 40 Perspectives on Sexual & Reproductive Health 94, 98 (2008); and that only one-fourth of women who request an IUD actually have one inserted after finding out how expensive it would be, Gariepy, Simon, Patel, Creinin, & Schwarz, The Impact of Out-ofPocket Expense on IUD Utilization Among Women With Private Insurance, 84 Contraception e39, e40 (2011). See also Eisenberg, supra, at S60 (recent study found that women who face out-of-pocket IUD costs in excess of $50 were “11-times less likely to obtain an IUD than women who had to pay less than $50”); Postlethwaite, Trussell, Zoolakis, Shabear, & Petitti, A Comparison of Contraceptive Procurement Pre- and Post-Benefit Change, 76 Contraception 360, 361–362 (2007) (when one health system eliminated patient cost sharing for IUDs, use of this form of contraception more than doubled).
Stepping back from its assumption that compelling interests support the contraceptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court
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23 Although the Court’s opinion makes this assumption grudgingly, see ante, at 39–40, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.” Ante, at 2 (opinion of KENNEDY, J.).

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suggests, Congress would not have created these exclusions. See ante, at 39–40.
Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes. See, e.g., Family and Medical Leave Act of 1993, 29 U. S. C. §2611(4)(A)(i) (applicable to employers with 50 or more employees); Age Discrimination in Employment Act of 1967, 29 U. S. C. §630(b) (originally exempting employers with fewer than 50 employees, 81 Stat. 605, the statute now governs employers with 20 or more employees); Americans With Disabilities Act, 42 U. S. C. §12111(5)(A) (applicable to employers with 15 or more employees); Title VII, 42 U. S. C. §2000e(b) (originally exempting employers with fewer than 25 employees, see Arbaugh v. Y & H Corp., 546 U. S. 500, 505, n. 2 (2006), the statute now governs employers with 15 or more employees).
The ACA’s grandfathering provision, 42 U. S. C. §18011, allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive coverage or other preventive services provisions). Once specified changes are made, grandfathered status ceases. See 45 CFR §147.140(g). Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by the District Court, Hobby Lobby’s counsel explained that the “grandfathering requirements mean that you can’t make a whole menu of changes to your plan that involve things like the amount of co-pays, the amount of coinsurance, deductibles, that sort of thing.” App. in No. 13– 354, pp. 39–40. Counsel acknowledged that, “just because of economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over time.” Id., at 40.24 The percentage of employees in grand-
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24 Hobby Lobby’s amicus National Religious Broadcasters similarly

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fathered plans is steadily declining, having dropped from 56% in 2011 to 48% in 2012 to 36% in 2013. Kaiser Family Foundation & Health Research & Educ. Trust, Employer Benefits 2013 Annual Survey 7, 196. In short, far from ranking as a categorical exemption, the grandfathering provision is “temporary, intended to be a means for gradually transitioning employers into mandatory coverage.” Gilardi, 733 F. 3d, at 1241 (Edwards, J., concurring in part and dissenting in part).
The Court ultimately acknowledges a critical point: RFRA’s application “must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Ante, at 42, n. 37 (quoting Cutter v. Wil­ kinson, 544 U. S. 709, 720 (2005); emphasis added). No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contraceptive coverage requirement was designed to protect. Cf. supra, at 7–8; Prince v. Massachusetts, 321 U. S. 158, 177 (1944) (Jackson, J., dissenting) (“[The] limitations which of necessity bound religious freedom . . . begin to operate whenever activities begin to affect or collide with liberties of others or of the public.”).
4
After assuming the existence of compelling government interests, the Court holds that the contraceptive coverage requirement fails to satisfy RFRA’s least restrictive means test. But the Government has shown that there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing
——————
states that, “[g]iven the nature of employers’ needs to meet changing economic and staffing circumstances, and to adjust insurance coverage accordingly, the actual benefit of the ‘grandfather’ exclusion is de minimis and transitory at best.” Brief for National Religious Broadcasters as Amicus Curiae in No. 13–354, p. 28.

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BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and well being. A “least restrictive means” cannot require employees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets. See supra, at 7–8, 27.25
Then let the government pay (rather than the employees who do not share their employer’s faith), the Court suggests. “The most straightforward [alternative],” the Court asserts, “would be for the Government to assume the cost of providing . . . contraceptives . . . to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” Ante, at 41. The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logistical and administrative obstacles.” 78 Fed. Reg. 39888. Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated. Ibid. Moreover, Title X of the Public Health Service Act, 42 U. S. C. §300 et seq., “is the nation’s only dedicated source of federal
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25 As the Court made clear in Cutter, the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause. 544 U. S., at 720–722. “[W]e are a cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld, 366 U. S., at 606, a “rich mosaic of religious faiths,” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (KAGAN, J., dissenting) (slip op., at 15). Consequently, one person’s right to free exercise must be kept in harmony with the rights of her fellow citizens, and “some religious practices [must] yield to the common good.” United States v. Lee, 455 U. S. 252, 259 (1982).

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funding for safety net family planning services.” Brief for National Health Law Program et al. as Amici Curiae 23. “Safety net programs like Title X are not designed to absorb the unmet needs of . . . insured individuals.” Id., at 24. Note, too, that Congress declined to write into law the preferential treatment Hobby Lobby and Conestoga describe as a less restrictive alternative. See supra, at 6.
And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, see Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 303 (1985), or according women equal pay for substantially similar work, see Dole v. Shenandoah Baptist Church, 899 F. 2d 1389, 1392 (CA4 1990)? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?26 Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. See ante, at 3–4, 9–10, 43–45. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” Ante, at 44. I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths. See supra, at 14–17.
Ultimately, the Court hedges on its proposal to align forprofit enterprises with nonprofit religion-based organiza-
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26 Cf. Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 666 (2004) (in context of First Amendment Speech Clause challenge to a content-based speech restriction, courts must determine “whether the challenged regulation is the least restrictive means among available, effective alternatives” (emphasis added)).

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BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
tions. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Ante, at 44. Counsel for Hobby Lobby was similarly noncommittal. Asked at oral argument whether the Court-proposed alternative was acceptable,27 counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.” Tr. of Oral Arg. 86–87.
Conestoga suggests that, if its employees had to acquire and pay for the contraceptives (to which the corporation objects) on their own, a tax credit would qualify as a less restrictive alternative. See Brief for Petitioners in No. 13– 356, p. 64. A tax credit, of course, is one variety of “let the government pay.” In addition to departing from the existing employer-based system of health insurance, Conestoga’s alternative would require a woman to reach into her own pocket in the first instance, and it would do nothing for the woman too poor to be aided by a tax credit.
In sum, in view of what Congress sought to accomplish,
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27 On brief, Hobby Lobby and Conestoga barely addressed the extension solution, which would bracket commercial enterprises with nonprofit religion-based organizations for religious accommodations purposes. The hesitation is understandable, for challenges to the adequacy of the accommodation accorded religious nonprofit organizations are currently sub judice. See, e.g., Little Sisters of the Poor Home for the Aged v. Sebelius, ___ F. Supp. 2d ___, 2013 WL 6839900 (Colo., Dec. 27, 2013), injunction pending appeal granted, 571 U. S. ___ (2014). At another point in today’s decision, the Court refuses to consider an argument neither “raised below [nor] advanced in this Court by any party,” giving Hobby Lobby and Conestoga “[no] opportunity to respond to [that] novel claim.” Ante, at 33. Yet the Court is content to decide this case (and this case only) on the ground that HHS could make an accommodation never suggested in the parties’ presentations. RFRA cannot sensibly be read to “requir[e] the government to . . . refute each and every conceivable alternative regulation,” United States v. Wilgus, 638 F. 3d 1274, 1289 (CA10 2011), especially where the alternative on which the Court seizes was not pressed by any challenger.

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i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the proffered alternatives would satisfactorily serve the compelling interests to which Congress responded.
IV
Among the pathmarking pre-Smith decisions RFRA preserved is United States v. Lee, 455 U. S. 252 (1982). Lee, a sole proprietor engaged in farming and carpentry, was a member of the Old Order Amish. He sincerely believed that withholding Social Security taxes from his employees or paying the employer’s share of such taxes would violate the Amish faith. This Court held that, although the obligations imposed by the Social Security system conflicted with Lee’s religious beliefs, the burden was not unconstitutional. Id., at 260–261. See also id., at 258 (recognizing the important governmental interest in providing a “nationwide . . . comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees”).28 The Government urges that Lee should control the challenges brought by Hobby Lobby and Conestoga. See Brief for Respondents in No. 13–356, p. 18. In contrast, today’s Court dismisses Lee as a tax case. See ante, at 46–47. Indeed, it was a tax case and the Court in Lee homed in on “[t]he difficulty in attempting to accommodate religious beliefs in the area of taxation.” 455 U. S., at 259.
But the Lee Court made two key points one cannot confine to tax cases. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be
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28 As a sole proprietor, Lee was subject to personal liability for violating the law of general application he opposed. His claim to a religionbased exemption would have been even thinner had he conducted his business as a corporation, thus avoiding personal liability.

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superimposed on statutory schemes which are binding on others in that activity.” Id., at 261. The statutory scheme of employer-based comprehensive health coverage involved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” Ibid.29 No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door,30 at least in the absence of directions from the Legislature or Administration to do so.
Why should decisions of this order be made by Congress or the regulatory authority, and not this Court? Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp.
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29 Congress amended the Social Security Act in response to Lee. The amended statute permits Amish sole proprietors and partnerships (but not Amish-owned corporations) to obtain an exemption from the obligation to pay Social Security taxes only for employees who are coreligionists and who likewise seek an exemption and agree to give up their Social Security benefits. See 26 U. S. C. §3127(a)(2), (b)(1). Thus, employers with sincere religious beliefs have no right to a religionbased exemption that would deprive employees of Social Security benefits without the employee’s consent—an exemption analogous to the one Hobby Lobby and Conestoga seek here.
30 Cf. Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 299 (1985) (disallowing religion-based exemption that “would undoubtedly give [the commercial enterprise seeking the exemption] and similar organizations an advantage over their competitors”).

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941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, 377 F. 2d 433 (CA4 1967), aff ’d and modified on other grounds, 390 U. S. 400 (1968); In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn. 1985) (born-again Christians who owned closely held, forprofit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986); Elane Photog­ raphy, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”? Ante, at 37.
Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian

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BURWELL v. HOBBY LOBBY STORES, INC.

GINSBURG, J., dissenting
Scientists, among others)?31 According to counsel for Hobby Lobby, “each one of these cases . . . would have to be evaluated on its own . . . apply[ing] the compelling interest-least restrictive alternative test.” Tr. of Oral Arg. 6. Not much help there for the lower courts bound by today’s decision.
The Court, however, sees nothing to worry about. Today’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” Ante, at 46. But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Women’s Health Amendment.
There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Ibid. The Court, I fear,
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31 Religious objections to immunization programs are not hypothetical. See Phillips v. New York, ___ F. Supp. 2d ___, 2014 WL 2547584 (EDNY, June 5, 2014) (dismissing free exercise challenges to New York’s vaccination practices); Liberty Counsel, Compulsory Vaccinations Threaten Religious Freedom (2007), available at http://www.lc.org/ media/9980/attachments/memo_vaccination.pdf.

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has ventured into a minefield, cf. Spencer v. World Vision, Inc., 633 F. 3d 723, 730 (CA9 2010) (O’Scannlain, J., concurring), by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organizations formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged . . . substantially in the exchange of goods or services for money beyond nominal amounts.” See id., at 748 (Kleinfeld, J., concurring).
* * *
For the reasons stated, I would reverse the judgment of the Court of Appeals for the Tenth Circuit and affirm the judgment of the Court of Appeals for the Third Circuit.

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1

BREYER and KAGAN, JJ., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 13–354 and 13–356
_________________

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL., PETITIONERS

13–354

v.

HOBBY LOBBY STORES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL., PETITIONERS

13–356

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[June 30, 2014]

JUSTICE BREYER and JUSTICE KAGAN, dissenting.
We agree with JUSTICE GINSBURG that the plaintiffs’ challenge to the contraceptive coverage requirement fails on the merits. We need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993. Accordingly, we join all but Part III–C–1 of JUSTICE GINSBURG’s dissenting opinion.