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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BECKWITH ELECTRIC CO., INC.; and THOMAS R. BECKWITH, Chief Executive Officer and Primary Shareholder of Beckwith Electric Co., Inc.

Case No. 8:13-cv-00648 Hon. Judge Elizabeth A. Kovachevich

Plaintiffs,

Magistrate Judge Mark A. Pizzo

v.

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACK LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,

Defendants.

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND LOCAL RULE 3.01(j) REQUEST FOR ORAL ARGUMENT

PLEASE TAKE NOTICE that at the earliest possible time for the court to hear this

motion, Plaintiffs Beckwith Electric Co., Inc. and Thomas R. Beckwith, by and through their

undersigned counsel, will and hereby do move the court for a Preliminary Injunction pursuant to

Fed. R. Civ. P. 65(a) and Local Rule 3.06 in order to prevent immediate irreparable injury to

Plaintiffs’ fundamental rights and interests.

In support of their motion, Plaintiffs rely upon the pleadings and papers of record, as well

as their brief filed with this motion, and the declarations and exhibits attached hereto. For the

reasons set forth more fully in the supporting brief, Plaintiffs hereby request that this court enjoin

the enforcement of Defendants’ Health and Human Services Mandate that violates Plaintiffs’

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rights guaranteed by the First Amendment to the United States Constitution and the Religious
Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. For
the purposes of this request for a preliminary injunction, the Plaintiffs focus solely on Claims I-
III and VII-VIII of their complaint; however, Plaintiffs do not forfeit any of the claims alleged in
their complaint. Plaintiffs additionally request oral argument and estimate that the time required
for oral argument on this motion would be one (1) hour. See Local Rule 3.01(j).
BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND LOCAL RULE 3.01(j) REQUEST FOR ORAL ARGUMENT INTRODUCTION
Plaintiffs Beckwith Electric, Thomas R. Beckwith (collectively “Plaintiffs”) bring this
Motion for a Preliminary Injunction to enjoin the unconstitutional and illegal directives of the
HHS Mandate. Currently, the Defendants are forcing businesses and organizations which hold
sincerely held religious beliefs to violate those beliefs by supplying contraceptive and abortifacient coverage.1 Such action blatantly disregards religious freedom and the right of
conscience, and is nothing short of irreconcilable with the Religious Freedom Restoration Act,
42 U.S.C. § 2000bb et seq. (“RFRA”), and the First Amendment. Nineteen courts thus far have
enjoined the HHS Mandate for for-profit companies indistinguishably situated and structured to the Plaintiffs.2
1 At the same time these Defendants are forcing Plaintiffs to violate their religious beliefs; Defendants have simply decided not to impose the HHS Mandate against several Plaintiffs in at least six similar cases by consenting to preliminary injunctive relief for for-profit companies and their owners. See Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-cv-00092, (Doc. # 41) (E.D. Mo. Mar. 11, 2013); Sioux Chief Mfg. Co. v. Sebelius, No. 4:13-cv-0036, (Doc. # 9) (W.D. Mo. Feb. 28, 2013)); Hall v. Sebelius, No. 13-0295, (Doc. # 10) (D. Minn. Apr. 2, 2013); Bick Holding, Inc. v. Sebelius, No. 4:13-cv-00462, (Doc. # 1) (E.D. Mo. Apr. 1, 2013); Tonn and Blank Construction v. Sebelius, No. 12-325, order (N.D. Ill. Apr. 1, 2013); Lindsay v. Sebelius, No. 1:13-cv01210, (Doc. # 21) (N.D. Ill. Mar. 20, 2013). Defendants moved to voluntarily dismiss their appeal of Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, slip op. (D.D.C. Nov. 16, 2012) and therefore decided not to challenge the lower court’s grant of preliminary injunction. Tyndale House Publishers, Inc. v. Sebelius, No. 135018, order (D.C. Cir., May 3, 2013). 2 See Monaghan v. Sebelius, No. 12-15488, slip op. (E.D. Mich. March 14, 2013); Legatus v. Sebelius, No. 1212061, slip op. (E.D. Mich. October 31, 2012); O’Brien v. U.S. Dep’t of Health & Human Servs., No. 12-3357, order (8th Cir. November 28, 2012); Korte v. Sebelius, No. 12-3841, slip op. (7th Cir. Dec. 28, 2012), Grote Indus.
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FACTUAL BACKGROUND
Plaintiff Beckwith Electric is a for-profit company. (Beckwith Decl. at ¶ 3 at Ex. 1).
Plaintiff Thomas R. Beckwith is the Chief Executive Officer and 92% voting shareholder.
(Beckwith Decl. at ¶¶ 3, 8-9 at Ex. 1). Plaintiffs strive to follow the teachings and values of the
Southern Baptist Faith. (Beckwith Decl. at ¶¶ 6-7, 10-15, 20-26, 29-32 at Ex. 1). Plaintiffs
believe that a company managed under the living God’s direction and by God’s principles cannot
engage in activities that are contrary to such direction, principles, or moral compass. (Beckwith
Decl. at ¶ 13 at Ex. 1). Plaintiffs believe that terminating an innocent human life and any
devices, drugs, or services that are capable of killing innocent human life is a clear violation of
such direction, principles, or moral compass. Id. Plaintiffs believe that abortion-causing drugs
(abortifacients and emergency contraceptives) are contrary to their Southern Baptist Faith. Id.
Plaintiffs therefore cannot provide or fund through their private group health insurance plan
abortifacients or emergency contraceptives. Id.
Plaintiffs employ 163 full-time employees. (Beckwith Decl. at ¶¶ 4-5 at Ex. 1). Plaintiff
Thomas R. Beckwith is responsible for setting and implementing all policies governing
Beckwith Electric. (Beckwith Decl. at ¶ 8 at Ex. 1). In accordance with the Southern Baptist Faith, Plaintiffs specifically excluded abortifacients from their group health insurance plan.3
LLC v. Sebelius, No. 13-1077, slip op. (7th Cir. Jan. 30, 2013); Annex Med. Inc. v. Sebelius, No. 13-1119, slip op. (8th Cir. Feb. 1, 2013), Am. Pulverizer Co. v. Dep’t of Health & Human Servs., No. 12-3459, slip op. (W.D. Mo. Dec. 20, 2012); Newland v. Sebelius, No. 12-1123, slip op. (D. Colo. July 27, 2012); Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, slip op. (D.D.C. Nov. 16, 2012); Triune Health Group, Inc. v. U.S. Dep’t of Health and Human Servs., No. 1:12-cv-06756 (N.D. Ill. Jan. 3, 2013); Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., 12-92, slip op. (E.D. Mo. Dec. 31, 2012); Sioux Chief Mfg. Co., Inc. v. Sebelius, No. 13-36, order (W.D. Mo. Feb. 28, 2013); Seneca Hardwood Lumber v. Sebelius, No. 12-207, slip op. (W.D. Pa. Apr. 19, 2013); Lindsay, Rappaport & Postel LLC v. Sebelius, No. 13-1210, order (Mar. 20, 2013); Gilardi v. Dep’t of Health & Human Servs., No. 13-5069 , order (D.C. Cir. Mar. 29, 2013); Bick Holding, Inc. v. Sebelius, No. 13-462, order (E.D. Mo. Apr. 1, 2013); Am. Manufacturing Co. v. Sebelius, No. 13-295, slip op.(D. Minn. Apr. 2, 2013); Hart Electric LLC v. Sebelius, No. 13-2253, order (N.D. Ill. Apr. 18, 2013); Tonn and Blank Construction v. Sebelius, No. 12-325, order (N.D. Ill. Apr. 1, 2013). 3 Plaintiff Beckwith Electric also exercises religion by, for example, contributing large donations to charitable causes respecting the sanctity of life and offering on-site corporate chaplains. (Beckwith Decl. at ¶¶16-22).
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(Long Decl. at ¶¶ 5-8 at Ex. 2). After the mandate began its implementation in August 2012, Humana added coverage for emergency contraception and abortifacients to its group health plans. (Long Decl. at ¶ 16 at Ex. 2). This was done without any notice to, knowledge, or consent of Plaintiffs. (Long Decl. at ¶11 at Ex. 2). Plaintiffs have unwaveringly tried to remove coverage of abortifacients and emergency contraception from their plan. (Long Decl. at ¶ 13 at Ex. 2). Humana asserts that none of Plaintiffs’ plan participants have used their group insurance plan for abortifacient or emergency contraceptive coverage. (Long Decl. at ¶ 12 at Ex. 2). The mandate officially affects Plaintiffs as of the beginning of their plan year on June 1, 2013. (Long Decl. at ¶ 15 at Ex. 2). Due to the Health and Human Services Mandate (“HHS mandate” or “mandate”), Plaintiffs cannot make health care insurance decisions in line with their religious views. (Beckwith Decl. at ¶ 30-34, 40-46; Long Decl. at ¶ 16 at Ex. 2). The mandate forces Plaintiffs to pay, fund, contribute, provide, or support emergency contraception and abortifacients or related education and counseling, in violation of their Constitutional rights and deeply held religious beliefs.4 The Affordable Care Act (“ACA”) called for health insurance plans to provide coverage and “not impose any cost sharing requirements. . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines” and directed Defendant Sebelius to determine what would constitute “preventive care.” 42 U.S.C § 300gg-13(a)(4). Defendants published an interim final rule under the ACA, 75 Fed. Reg. 41726 (2010), requiring providers of group health insurance to cover “preventive care” for women as provided in guidelines to be published on a later date.5 Prior to adopting
4 See 45 C.F.R. § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines). 5 Defendants directed the Institute of Medicine (“IOM”) to compile recommended guidelines describing which drugs, procedures, and services should be covered as preventative care for women. (http://www.hrsa.gov/womensguidelines). IOM invited select groups to make presentations on the preventive care that should be mandated by all health plans. (http://www.nap.edu/openbook.php?record_id=13181&PAGE=217). No religious groups or groups opposing government-mandated coverage of contraception, abortion, and related
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those guidelines, Defendants accepted public comments. A large number of groups filed comments warning of the potential implications of requiring religious individuals and groups to pay for contraception and abortifacients.
On February 15, 2012, Defendant United States Department of Health and Human Services (“HHS”) promulgated the mandate that group health plans include coverage for all FDA-approved contraceptive methods and procedures, patient education, and counseling for all women with reproductive capacity in plan years beginning on or after August 1, 2012.6 All FDA-approved contraceptives included contraception, abortion, and abortifacients such as birthcontrol pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures.7 The mandate applies to almost all group health plans and health insurance issuers, 42 U.S.C. § 300gg-13 (a)(1),(4), and forces Plaintiffs to provide “preventive care” by making available and subsidizing such contraception, abortion, and abortifacients. The mandate also requires group health care plans and insurance issuers to provide education and counseling for all women beneficiaries with reproductive capacity—even if paying for or providing such “services” violates one’s conscience and deeply held religious beliefs.
The ACA and the mandate include a number of exemptions, but Plaintiffs do not fall within them.8 Plaintiffs’ insurance plan is not “grandfathered.” (Long Decl. at ¶ 15 at Ex. 4).9
education and counseling were invited to present. Defendants adopted the IOM recommendations in full. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. 6 See 45 C.F.R. § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines). 7 (http://www.hrsa.gov/womensguidelines) (last visited May 6, 2013). 8 The allowable factors for receiving exemptions under the Affordable Health Care Act include: the age of the plan, 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. §147.140 (exempting plans that qualify for “grandfathered” status by meeting criteria such as abstaining from plan changes since the date of March 23, 2010); a non-profit company which qualifies as a “religious employer,” 45 C.F.R. § 147.130 (a)(iv)(A) and (B) (exempting non-profit companies which adopt certain hiring practices and exist to further the organization’s religious doctrine); and individuals of certain religions which disapprove of insurance in its entirety such as the
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Plaintiffs do not qualify for the “religious employer” exemption contained in 45 C.F.R. § 147.130 (a)(iv)(A) and (B). Plaintiffs cannot be considered for this exemption as Plaintiff Beckwith Electric is for-profit. Defendant Sebelius has announced that there will be no change to the religious exemption, but “[n]onprofit 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.”10 This provided no relief to Plaintiffs, as a for-profit company is ineligible for the safe-harbor provision.11 Defendants claim that the temporary safe-harbor provision could become permanent for non-profit companies who object to the mandate.12 Defendant Sebelius also announced that HHS “intend[s] to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support,” acknowledging that contraceptives are readily available without mandating Plaintiffs subsidize them.13
Without the injunctive relief of this Court, Plaintiffs are forced to choose: comply with the mandate and violate their deeply held religious beliefs; or disobey federal law and incur the consequences, including severe burdens on their religious exercise, enormous penalties, and substantial competitive disadvantages in employee recruitment and retention if Plaintiffs are no
Muslim or Amish religion, 26 U.S.C. § 5000A(d)(2)(A)(i)-(ii) (exempting members of “recognized religious sect or division” that conscientiously object to acceptance of public or private insurance funds). 9 Plaintiffs’ health care plan is not a grandfathered plan as: (1) the health care plan does not include the required “disclosure of grandfather status” statement; (2) Plaintiffs do not take the position that its health care plan is a grandfathered plan and thus do not maintain the records necessary to verify, explain, or clarify its status as a grandfathered plan nor will it make such records available for examination upon request; and (3) the health care plan has an increase in a percentage cost-sharing requirement measured from March 23, 2010. See 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. §147.140; (Beckwith Decl. at ¶ 37 at Ex. 1; Long Decl. ¶ 15 at Ex. 2). 10 (http://www.hhs.gov/news/press/2012pres/01/20120120a.html) (last visited May 6, 2013). 11 77 Fed. Register 8725 (Feb. 15, 2012). 12 (http://www.hhs.gov/news/press/2013pres/02/20130201a.html) (last visited May 6, 2013). 13 (http://www.hhs.gov/news/press/2012pres/01/20120120a.html) (last visited May 6, 2013).
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longer able to offer health care.14 In this motion, Plaintiffs simply seek to continue providing health insurance in compliance with their sincere and deeply held religious beliefs. (Beckwith Decl. at ¶ 40-51 at Ex. 1).
ARGUMENT The standard for issuing a preliminary injunction in this Circuit is well established. In Siegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000), the court stated: A district court may grant injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Id.; see also McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998) (citing All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)). Typically, the reviewing court will balance these factors, and no single factor will necessarily be determinative of whether or not to grant the injunction. Id. However, because this case deals with a violation of Plaintiffs’ First Amendment rights, irreparable harm is presumed and the crucial and often dispositive factor is whether Plaintiffs are likely to prevail on the merits. See Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983). A. Plaintiffs’ Likelihood of Success on the Merits
i. The HHS Mandate violates the Religious Freedom Restoration Act. The Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. (hereinafter “RFRA”), strictly prohibits the Federal Government from substantially burdening a person’s exercise of religion, “even if the burden results from a rule of
14 Upon not providing insurance to its employees, Plaintiffs would incur a $2,000 annual fine per employee, of which they have 163 employees. 26 U.S.C. § 4980H. The fines are even more insurmountable if Plaintiffs were to decide to offer insurance that did not comply with the HHS Mandate. Beckwith Decl. at ¶¶ 35-36 at Ex. 1) (penalties of $266,000 or $5,949,500 per year).
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general applicability” except when the Government can “demonstrate[] that application of the burden to the person--(1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that . . . interest.” Id.; see also Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006); Newland, et al. v. Sebelius, et al., No. 121123, slip op. at *17-18 (D. Colo. July 27, 2012) (granting preliminary injunction from HHS Mandate due to violation of RFRA); Legatus v. Sebelius, No. 12-12061, slip op. (E.D. Mich. October 31, 2012) (same); Monaghan, No. 12-15488, slip op. (E.D. Mich. March 14, 2013) (same).
In its formulation of RFRA, Congress expressly adopted the compelling interest test of Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). In both cases, the Court “looked beyond broadly formulated interests justifying the general applicability of government mandates, scrutinized the asserted harms, and granted specific exemptions to particular religious claimants.” Gonzales at 431, see also Yoder at 213, 221, 236; Sherbert at 410. In Sherbert, the Court held that the State’s denial of unemployment benefits to an employee who refused to work on Saturdays because of her religious beliefs was an impermissible burden on her free exercise of religion because it “force[d] her 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.” Id. at 404. The Sherbert court held that the government could not impose the same kind of burden upon the free exercise of religion as it would impose a fine against noncompliant parties of the law. Id. at 402.
In Yoder, Amish and Mennonite parents of teenaged children held religious beliefs that prohibited them from sending their children to high school as required by Wisconsin law. Yoder at 207. Each parent was fined $5 per child for failing to comply with state law for not sending
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their children to school beyond the eighth grade in accordance with their sincerely held religious belief that “higher learning tends to develop values they reject as influences that alienate man from God.” Id. at 208-13. The Court held that the impact of Wisconsin law, while recognizing the “paramount” interest in education that the law sought to promote, impermissibly compelled the parents to perform acts undeniably at odds with the fundamental tenets of their religious beliefs. Id. at 218, 213, 221; see also Braunfeld v. Brown, 366 U.S. 599, 605 (1961). The Court found that this compulsion “carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent,” Yoder at 218; the same constitutionally forbidden compulsion is before the court in this case.
In accordance with the Supreme Court rulings in Sherbert and Yoder, and with the plain language of RFRA expressly enacted by Congress to protect religious freedom, the HHS Mandate substantially burdens the Plaintiffs’ sincere exercise of religion. Furthermore, the federal government cannot “demonstrate[] 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(b).
1. A Corporation and its Owners have First Amendment rights The corporate form cannot be a reason to declare an entity incapable of exercising religion. RFRA applies to “persons,” 42 U.S.C. § 2000bb(b), and persons as defined by 1 U.S.C. § 1 includes corporations. The United States Code requires the conclusion that corporations can exercise religion. Concluding otherwise would mean that churches, religious hospitals, and religious non-profits cannot bring claims either under RFRA or under the Free Exercise Clause. Reading the definition of person to cover corporations is consistent with the statutory scheme because corporations already benefit from other civil rights provisions and from the First
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Amendment Rights RFRA was designed to restore. See, e.g. Thinket Ink. v. Sun Microsystems,
Inc., 368 F. 3d 1053, 1058-60 (9th Cir. 2004) (corporations may bring § 1981 actions for racial
discrimination); White Mountain Apache Tribe v. Williams, 810 F.2d 844, 867 (9th Cir. 1984)
(corporations may bring § 1983 actions and qualify as “persons” under the 14th Amendment, the
equal protection clause, and the due process clause); NAACP v. Button, 371 U.S. 415, 428-430
(1963). Corporations qualify as “persons” under the 14th Amendment, the equal protection
clause, and the due process clause. Id. Corporations have brought free exercise cases before.15
The Supreme Court has expressly held that “First Amendment protection extends to
corporations,” and a First Amendment right “does not lose First Amendment protection simply
because its source is a corporation.” Citizens United v. Federal Election Comm’n, 130 S. Ct.
876, 899 (2010); see also Monell v. Dept. of Social Services, 436 U.S. 658, 687 (1978)
(“corporations should be treated as natural persons for virtually all purposes of constitutional and
statutory analysis”).16 For-profit corporations such as the New York Times could never have
15 See, e.g. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993); Okleveuha Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829 (9th Cir. 2012); Mirdrash Sephardi, Inc. v. Town of Surfside, 367 F. 3d 1214 (11th Cir. 2004); see also Durham & Smith, 1 Religious Organizations and the Law § 3:44 (2012) (explaining reasons religious organizations use the corporate form). 16 In First National Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978), the Supreme Court held in its determination of the constitutionality of a law identified as §8,
The Constitution often protects interests broader than those of the party seeking their vindication. The First Amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations "have" First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether § 8 abridges expression that the First Amendment was meant to protect. We hold that it does. . . . We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. The "materially affecting" requirement is not an identification of the boundaries of corporate speech etched by the Constitution itself. Rather, it amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication. Id. at 775-76, 784 (1978). These protections cannot be reconciled with the government’s view that commerce excludes religion. There is no factual basis for the notion that Plaintiffs forfeit their constitutional rights when they chose to conduct business through a business entity authorized by state law. This is as it should be because any
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won seminal cases without possessing First Amendment rights. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
Just because Plaintiffs have entered the commercial marketplace, they have not abandoned their rights to the exercise of religion. The Supreme Court has recognized that an Amish business owner may exercise religion in the marketplace. United States v. Lee, 455 U.S. 252, 257 (1982), rev’d on other grounds. Other cases likewise show that a for-profit company can exercise religion and bring free exercise claims on behalf of itself or its owners. McClure v. Sports and Health Club, Inc., 370 N.W.2d 844, 850 (Minn. 1985). The Ninth Circuit allowed two for-profit corporations to assert free exercise claims on behalf of their owners. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119–20 & n.9 (9th Cir. 2009) (pharmacy and its religious owners); EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 620 n.15 (9th Cir. 1988) (manufacturer on behalf of its religious owners). In Commack Self-Service Kosher Meats, Inc. v. Hooker, 680 F.3d 194 (2d Cir. 2012), the court allowed a kosher deli and its owners, id. at 200, to bring Free Exercise and Establishment Clause claims, and the court subjected each claim to the applicable level of scrutiny rather than declaring that the for-profit business and its owners were not capable of exercising religion. See also Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, slip op. at *5-9 (D.D.C. Nov. 16, 2012).
There is no distinction under RFRA which divides profit vs. non-profit activity, corporate vs. individual activity, direct vs. indirect activity. RFRA presents this question: whether the
effort to make the Plaintiffs’ surrender their fundamental rights in order to use the corporate form would itself be unconstitutional. See Bd. of County Comm’rs v. Umbehr, 518 U.S. 668, 674 (1996) (“our modern ‘unconstitutional conditions’ doctrine holds that the government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected [First Amendment rights] even if he has no entitlement to that benefit”); Dolan v. City of Tigard, 512 U.S. 374, 385 (1994) (“Under the well-settled doctrine of ‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right . . . in exchange for a discretionary benefit conferred by the government”). Here, the Plaintiffs seek to live out religious faith, in part, in the way Plaintiffs conduct the business they own and operate. To force Plaintiffs to violate their conscience or face ruinous fines for doing so substantially burdens the Plaintiffs’ free exercise of religion under RFRA and the First Amendment.
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government is imposing a substantial burden on the exercise of religion. 42 U.S.C. § 2000bb-1. RFRA requires strict scrutiny analysis. The Seventh and Eighth Circuits have echoed four times that such cases presented “a sufficient likelihood of success on the merits.” See Annex Medical; O’Brien; Grote; Korte.
One can exercise religion while engaging in business, and the free exercise clause has often involved the commercial sphere. As discussed in Sherbert, an employee’s religious beliefs were burdened by not receiving unemployment benefits. 374 U.S. at 399. The same occurred in Thomas v. Review Bd., 450 U.S. 707, 709 (1981). In U.S. v. Lee, the Court held that an employer’s beliefs were burdened by paying taxes for workers. 455 U.S. at 257. In Fraternal Order of Police v. City of Newark, 170 F.3d 359, 360 (3d Cir. 1999) (Alito, J.), an employee’s bid to continue his employment was burdened by discriminatory grooming rules.17 No case exists which holds that religious exercise should be confined to the four walls of a person’s church, home, or mind. Religion is not an isolated category of human activity. Religion is, among other things, a viewpoint from which people engage in any kind of activity or purpose, not excluding business. See Goods News Club v. Milford Central School, 533 U.S. 98, 107-12 (2001) (activities of any kind, whether “social,” “civic,” “recreational,” or educational, are not different kinds of activities when religious, they are the same kind of activity simply done from a religious perspective). Under the law, a person is not required to attend weekly mass, uphold the sacraments, or tithe before being able to hold religious beliefs. Religion is also not purely
17 Congress also has rejected the government’s argument in many ways. For example, the Affordable Care Act lets employers and “facilit[ies]” assert religious beliefs for or against “provid[ing] coverage for” abortions, without requiring them to be nonprofits. 42 U.S.C. § 18023; see http://www.aha.org/research/rc/stat-studies/fast-facts.shtml (last visited Apr. 22, 2013). Congress has repeatedly authorized similar objections. See, e.g., Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, Title VII, Div. C, § 727; id. at Title VIII, Div. C, § 808; 42 U.S.C. § 300a-7; 42 U.S.C. § 2996f(b)(8); 20 U.S.C. § 1688; 42 U.S.C. § 238n; 42 U.S.C. § 1396u-C.F.R. § 1609.7001(c)(7). These protections cannot be reconciled with the government’s now-stated view that religious exercise cannot occur in the world of commerce. If facilities and health plans have conscience protections under federal law, so too should the Plaintiff family business.
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“personal.” Many religions require exercise in groups and guide believers in all their daily activities. American law protects religious exercise, not religious subjectivism. No precedent exists which dictates that the confluence of two realities—corporate status and profit motive— make religious exercise impossible. The First Amendment has never contained a “dichotomy between religious and secular employers” and case law dictates the same. Corporations are no more purely “secular” or purely religious than are the people that run them. It is essential to freedom in America for its citizens to be able to live out their faith in their everyday lives, which includes such things as being employed and running a business.
2. The HHS Mandate substantially burdens Plaintiffs’ free exercise of religion.
Plaintiffs’ operation of health insurance plans according to their religious beliefs is “exercise of religion” under RFRA. RFRA protects “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). This includes not merely worship but actions in accordance with one’s faith.
Pursuant to the teachings of his Baptist Faith, Plaintiff Thomas R. Beckwith’s sincerely held religious beliefs prohibit him from providing or purchasing health insurance coverage for emergency contraception, abortifacients, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. The HHS Mandate creates governmentimposed coercive pressure on Plaintiffs to purchase insurance and provide emergency contraception, abortion, and abortifacients—or in other words, to change or violate their beliefs. By failing to provide an exemption for the Plaintiffs’ religious beliefs, the HHS Mandate not only exposes Plaintiffs to substantial per employee fines for their religious exercise—roughly $2,000 annually per employee, a fine significantly more severe than the $5 per student fine struck down by the Court in Yoder—but also exposes all Plaintiffs to substantial competitive
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disadvantages if they are no longer permitted to offer or purchase health insurance due to their religious beliefs. 26 U.S.C. §§ 4980D & 4980H; Legatus v. Sebelius, No. 12-12061, slip op. at *13 (E.D. Mich. October 31, 2012) (holding Plaintiffs likely to show HHS Mandate substantially burdens religious exercise); see also Sherbert at 374 U.S. at 403-04. The HHS Mandate imposes a substantial burden on Plaintiffs’ religious exercise by forcing Plaintiff Thomas Beckwith and his company to act in violation of the teachings of the Baptist Faith.18
3. The HHS Mandate fails to justify a compelling interest. The HHS Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest, as contraceptives are currently readily available through other means without forcing the Plaintiffs to provide them. It is Defendants, not Plaintiffs, who must demonstrate both a compelling interest and their use of the least restrictive means before this Court, even at the preliminary injunction stage. Gonzales, 546 U.S. at 428-30; see also Newland, slip op. at *11 (“The initial burden is borne by the party challenging the law. Once that party establishes that the challenged law substantially burdens her free exercise of religion, the burden shifts to the government to justify that burden. The nature of this preliminary injunction proceeding does not alter these burdens.”) (quoting Gonzales, 546 U.S. at 429). In order to prove that Defendants’ substantial burden on the Plaintiffs’ religious liberties is justified, Defendants would need to pass strict scrutiny—“the most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). Defendants are charged to “specifically identify an ‘actual problem’ in need of solving,” and show that substantially burdening Plaintiffs’ free exercise of religion is “actually necessary
18 As the Court in Tyndale correctly noted, “Because it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties. And even if this burden could be characterized as ‘indirect,’ the Supreme Court has indicated that indirectness is not a barrier to finding a substantial burden.” Id. at *13 (citing Thomas v. Review Brd., 450 U.S. 707, 718 (1981)).
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to the solution.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011). The government bears the burden of proof and “ambiguous proof will not suffice.” Id. at 2739.19
There is “no actual problem in need of solving,” and forcing the Plaintiffs to violate their religious beliefs fails to offer any sort of “actually necessary solution.” Forcing the Plaintiffs to provide and fund health insurance which makes contraceptives and abortifacients available to their employees serves only an ambiguous, non-compelling interest, and at best would serve the interest of marginally increasing access to contraceptives and abortifacients. What radically undermines any claim from the Defendants that the Mandate is needed to address a compelling harm to its asserted interests is the massive number of employees and participants, tens of millions in fact, for whom the government has voluntarily decided to omit what they call a compelling need to protect health and equality. Newland, et al. v. Sebelius, et al., No. 12-1123, slip op. at *23 (D. Colo. July 27, 2012); Tyndale, slip op. at *17. Defendants cannot explain how their interests can be compelling against Plaintiffs when, by the government’s own choice in not applying this Mandate to grandfathered plans, nearly 200 million Americans will not receive the Mandate’s benefits.
Notably, ACA does impose multiple requirements on grandfathered health plans, but Defendants have decided that this Mandate is not of a high enough order to be imposed. The preventive services Mandate, listed at § 2713 of ACA, is conspicuously omitted from the provisions that grandfathered plans must observe: §§ 2704, 2708, 2711, 2712, 2714, 2715, and 2718. See list at 75 Fed. Reg. 34,538, 34,542. These include such requirements as dependent
19 Indeed, nineteen District Courts have already ruled that the Defendants failed to meet this burden of proof under the HHS Mandate. See, e.g., Newland, slip op. at *17 (“Defendants have failed to adduce facts establishing that government provision of contraception services will necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventative health care coverage to women.”); see also Legatus, slip op. at *22 (in weighing whether the Government applies the least restrictive means in the HHS Mandate, “The cost to Plaintiffs appears provably substantial. The cost to the Government appears provably small”).
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coverage until age 26, and restrictions on preexisting condition exclusions and annual or lifetime limits. Thus, Congress itself has deemed that many interests are of the “highest order” to impose on 2/3 of the nation covered in grandfathered plans, but not this Mandate. It is therefore necessarily true that Congress deemed the Mandate to be of a lower order, which fails the compelling interest standard. The Defendants have granted the equivalent of a preliminary injunction to all non-profit companies satisfying the one-year non-enforcement “safe harbor,” so that their employees too are omitted from the Mandate and claim that a permanent exemption for non-profit companies is in the rulemaking stage. 77 Fed. Register 8725 (Feb. 15, 2012); see also http://www.hhs.gov/news/press/2013pres/02/20130201a.html (last visited May 6, 2013). Furthermore, the Defendants have agreed not to enforce the mandate against at least six forprofit companies.20
The Defendants cannot demonstrate a compelling need to require Plaintiffs to comply with a Mandate that it has chosen not to apply to millions of employees nationwide. As in Gonzales, where government exclusions applied to “hundreds of thousands” (here, tens of millions), RFRA requires “a similar exception for the [hundreds] or so” implicated by Plaintiffs here. Id. at 433.
4. The HHS Mandate fails to use the least restrictive means. The mandate is also not the least restrictive means of furthering the Defendants’ interests. In Riley v. National Federation of the Blind, 487 U.S. 781, 799–800 (1988), the Court required the government to use alternatives rather than burden fundamental rights, even when the alternatives might be more costly or less directly effective to achieve the goal. In Riley, North
20 See Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-cv-00092, (Doc. # 41) (E.D. Mo. Mar. 11, 2013); Sioux Chief Mfg. Co. v. Sebelius, No. 4:13-cv-0036, (Doc. # 9) (W.D. Mo. Feb. 28, 2013)); Hall v. Sebelius, No. 13-0295, (Doc. # 10) (D. Minn. Apr. 2, 2013); Bick Holding, Inc. v. Sebelius, No. 4:13-cv-00462, (Doc. # 1) (E.D. Mo. Apr. 1, 2013); Tonn and Blank Construction v. Sebelius, No. 12-325, order (N.D. Ill. Apr. 1, 2013); Lindsay v. Sebelius, No. 1:13-cv-01210, (Doc. # 21) (N.D. Ill. Mar. 20, 2013).
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Carolina sought to curb fraud by requiring professional fundraisers to disclose during solicitations how much of the donation would go to them. 487 U.S. at 786. Applying strict scrutiny, the Supreme Court declared that the state’s interest could be achieved by punishing the same disclosures itself online, and by prosecuting fraud. Id. at 799-800. Although these alternatives would be costly, less directly effective, and a restructuring of the governmental scheme, strict scrutiny demanded they be viewed as acceptable alternatives. Id.
Here, Defendants could further their interests without coercing Plaintiffs in violation of their religious exercise. The government could subsidize emergency contraception itself and give it to employees at exempt entities. This in and of itself shows the mandate fails RFRA’s least restrictive means elements. Gonzales, 546 U.S. at 428-30. The government could offer tax deductions for the purchase of contraceptives, reimburse citizens who pay to use contraceptives, provide these services to citizens itself, or provide incentives for pharmaceutical companies to provide such products free of charge. Defendants could offer tax credits to those companies who comply with the HHS Mandate while not punishing those companies who do not based upon sincerely held religious beliefs. As in Riley, Defendants could add to the already existing HHS website or the website for the exchanges to provide for the availability of free contraceptives. Defendants could arrange—although they admit this system is already in place—for the “preventive services” to be made available at community health centers, public clinics, and hospitals. (http://www.hhs.gov/news/press/2012pres/01/20120120a.html) (last visited May 6, 2013). In fact the government already subsidizes contraception for certain individuals.21 Indeed,
21 See, e.g., Family Planning grants in 42 U.S.C. § 300, et seq.; the Teenage Pregnancy Prevention Program, Public Law 112-74 (125 Stat 786, 1080); the Healthy Start Program, 42 U.S.C. § 254c-8; the Maternal, Infant, and Early Childhood Home Visiting Program, 42 U.S.C. § 711; Maternal and Child Health Block Grants, 42 U.S.C. § 703; 42 U.S.C. § 247b-12; Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.; the Indian Health Service, 25 U.S.C. § 13, 42 U.S.C. § 2001(a), & 25 U.S.C. § 1601, et seq.; Health center grants, 42 U.S.C. § 254b(e), (g), (h), & (i); the NIH Clinical Center, 42 U.S.C. § 248; the Personal Responsibility Education Program, 42 U.S.C. § 713; and the Unaccompanied Alien Children Program, 8 U.S.C. § 1232(b)(1).
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of the various ways the government could achieve its interests; it has chosen perhaps the most burdensome means for non-exempt employers with religious objections to contraceptive services, such as Plaintiffs. Anderson v. Celebrezze, 460 U.S. 780, 806 (1983) (if the government “has open to it a less drastic way of satisfying its legitimate interests, it may not choose a [regulatory] scheme that broadly stifles the exercise of fundamental personal liberties”). HHS has carved out a number of exemptions for secular purposes such as size of employer, the age and grandfathered status of a health insurance plan, waivers for high grossing employers, inter alia. Granting an exemption to protect rights granted under the First Amendment should be at least as important.
In other cases challenging the HHS Mandate, Defendants have argued that women’s health and equality can only be achieved through free contraception. By forcing that these Plaintiffs provide the free contraception, Defendants have further claimed that women’s health and equality are harmed depending on who gives them the free contraception. There is no evidence that women are helped by making sure that their religious employers provide emergency contraception for them. If women received free emergency contraception from a different source, there is no evidence these women would face grave or paramount harms. Therefore, “the Government has not offered evidence demonstrating” compelling harm from an alternative. Gonzales, 546 U.S. at 435-37 (emphasis added). No evidence exists that the HHS Mandate could not use a less restrictive method to provide emergency contraception and abortifacients. Such evidence would not be possible as the effect of emergency contraception does not differ based upon who has purchased it. There are less restrictive ways for the Defendants to achieve their stated goals.
ii. The HHS Mandate violates the First Amendment to the United States Constitution, Free Exercise Clause.
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The First Amendment prohibits the government from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” U.S. Const. amend. I. Under the First Amendment, the government may not impose special restrictions, prohibitions, or disabilities on the basis of religious beliefs. See generally McDaniel v. Paty, 435 U.S. 618 (1978). “The Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such.” Id. at 626. And as the Supreme Court acknowledged, “This principle that government may not enact laws that suppress religious belief or practice is . . . well understood.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 523 (1993).
Unquestionably, the First Amendment protects Plaintiffs’ right to express and exercise their religious beliefs. Under the Free Exercise Clause, the Supreme Court has ruled that the government may only pass a law that burdens certain religious exercises when the law is facially neutral and of general applicability. Id. at 531. However, when a law burdens religious exercise because it is not actually neutral or generally applicable it must be “justified by a compelling governmental interest” and be “narrowly tailored to advance that interest.” Id. at 531-32 (citing Employment Div., Dep't of Human Res. of Ore. v. Smith, 494 U.S. 872 (1990)).
In Church of the Lukumi, supra, the City of Hialeah enacted an ordinance prohibiting the public sacrifice of animals. Id. at 527. The ordinance also contained exemptions for the slaughtering of animals raised for food purposes and for sale in accordance with state law. Id. at 528. The ordinance had the stated purpose of promoting “public health, safety, welfare, and the morals of the community” and carried a maximum fine of $500. Id. at 528. The ordinance, however, prevented members of the church of Santeria from engaging in a principal aspect of
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their religious worship, which was the public, sacrificial killing of animals. Id. at 524-25. This practice was known to the Defendant prior to the enactment of the ordinance. Id. at 526-27.
In deciding that the ordinance was not neutral nor generally applicable, the Court examined whether the law “infringe[d] upon or restrict[ed] practices because of their religious motivation,” or “in a selective manner impose[d] burdens only on conduct motivated by religious belief.” Id. at 533, 543. The Court emphasized that the Free Exercise Clause “forbids subtle departures from neutrality, and covert suppression of particular religious beliefs.” Id. at 534 (internal quotations and citations omitted).
The Court in Church of Lukumi further adopted the reasoning from Smith that “in circumstances in which individualized exemptions from a general requirement are available, the government ‘may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.’” Id. at 537 (quoting Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. at 884; Bowen v. Roy, 476 U.S. 693, 708 (1986) (opinion of Burger, C.J.)
1. The HHS Mandate is not neutral nor generally applicable, and fails strict scrutiny.
In the instant case, the HHS Mandate cannot avoid strict scrutiny as the law is neither neutral nor generally applicable and the Defendants have set forth a number of individualized exemptions from the general requirement. Widespread individualized exemptions deny the mandate of general applicability. Ward v. Polite, 667 F.3d 727, 740 (6th Cir. 2012) (“At some point, an exception-ridden policy takes on the appearance and reality of a system of individualized exemptions, the antithesis of a neutral and generally applicable policy and just the kind of state action that must run the gauntlet of strict scrutiny.”); see also Newland, slip op. at *15 (holding that the scheme of exemptions in the HHS Mandate “completely undermines any compelling interest”).
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Despite being informed in detail beforehand of the imposition on faith such as the Baptist
Faith of the Plaintiffs, Defendants designed the Mandate and the religious exemptions to the
Mandate in a way that made it impossible for Plaintiffs to comply in accord with their religious
beliefs. By design, Defendants imposed the Mandate on some religious organizations or
religious individuals but not on others, resulting in discrimination among religions. The ACA
and the HHS Mandate include exemptions for:
 Individual members of a “recognized religious sect or division” that conscientiously object to acceptance of public or private insurance funds in their totality, such as members of the Islamic faith or the Amish. 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii).
 Employers with health care plans that are considered to be “grandfathered,” which, amongst meeting other criteria, have been in place and remain unchanged since March 23, 2010. 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140.
 Employers with fewer than 50 full time employees. 26 USC § 4980H(c)(2)(B)(i). While employers with more than 50 full time employees must provide federal government-approved health insurance or pay substantial per-employee fines. 26 U.S.C. § 4980H.
 Non-profit employers who qualify under the narrow exemption of a “religious employer.” 45 C.F.R. § 147.130 (a)(iv)(A) and (B).
 All non-profit employers who do not qualify as a “religious employer” but who object to the HHS Mandate on religious grounds. 77 Fed. Register 8725 (Feb. 15, 2012); see also (http://www.hhs.gov/news/press/2013pres/02/20130201a.html) (last visited May 6, 2013).
The HHS Mandate in its exemptions completely fails to address the constitutional and
statutory implications on for-profit employers such as Plaintiffs Beckwith Electric and Thomas
R. Beckwith. Furthermore, there is no exemption available for a member of the Baptist Faith
who conscientiously objects to the HHS Mandate on religious grounds. The HHS Mandate
vests the Health Resources and Services Administration with unbridled discretion in deciding
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whether to allow exemptions to some, all or no organizations meeting the definition of “religious employers” or religious individuals.
For these reasons and those articulated in the previous section of this brief, the substantial burden the Defendants shackle to the Plaintiffs’ religious exercise is not narrowly tailored to any compelling governmental interest. The HHS Mandate violates the Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution. Based upon this, and all other reasons articulated in this brief, the Plaintiffs have demonstrated a substantial likelihood of prevailing on the merits of their claims.
B. Plaintiffs Will Suffer Irreparable Harm Without Injunctive Relief. Plaintiffs will be irreparably harmed absent the issuance of an injunction by this Court.
The HHS Mandate deprives Plaintiffs of their fundamental First Amendment rights. A showing of irreparable injury is "'the sine qua non of injunctive relief.'" Northeastern
Fla. Chapter of the Ass'n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (quoting Frejlach v. Butler, 573 F.2d 1026, 1027 (8th Cir. 1978)). And it is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” KH Outdoor. LLC v. Trussville, 458 F.3d 1261, 1271-72 (11th Cir. 2006) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); Legatus, slip op. at *26 (holding the HHS Mandate causes irreparable harm to First Amendment rights).
Plaintiffs additionally face financial harm through crippling per employee fines for noncompliance with the HHS Mandate. (Beckwith Decl. at ¶¶ 35, 36). Plaintiffs face substantial competitive disadvantages if they are no longer permitted to offer or purchase health insurance due to remaining faithful and exercising their religious beliefs. Id. at ¶ 45. If an injunction does not issue, Plaintiffs will be forced to violate their religious beliefs or forfeit health insurance.
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C. Granting a Preliminary Injunction Will Cause No Substantial Harm to Others. In this case, the likelihood of harm to Plaintiffs is substantial because Plaintiffs’ freedom
of religion is at issue, and the deprivation of this fundamental right, even for minimal periods, constitutes irreparable injury. On the other hand, if Defendants are restrained from enforcing the HHS Mandate against Plaintiffs, Defendants will suffer no harm because the exercise of constitutionally protected expression can never harm any of the Defendants’ or others’ legitimate interests. KH Outdoor at 1272-1273 (quoting Planned Parenthood Ass'n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (finding that the public's interest is in “prevention of enforcement of ordinances which may be unconstitutional”).
Defendants already exempt a number of other employers and individuals from the HHS Mandate. Allowing Plaintiffs an exemption in order to stop a violation of their deeply held religious beliefs fails to cause harm to Defendants. Defendants have even consented to enjoin the HHS Mandate and agreed to provide injunctive relief to similarly situated plaintiffs in at least six cases. See Seneca Hardwood Lumber, slip op. at *22 (“defendants cannot claim irreparable harm in this case while acquiescing to preliminary injunctive relief in several similar cases. In light of the exemptions granted, and defendants’ position with respect to injunctive relief in other cases, this factor weighs strongly in favor of granting the requested relief.”). As demonstrated, the enforcement of Defendants’ HHS Mandate on Plaintiffs violates the First Amendment and Defendants in other cases have consented to the requested preliminary relief; therefore, the balance of harm tips strongly in favor of issuing the injunction.
D. The Impact of the Preliminary Injunction on the Public Interest Favors Granting the Injunction. The impact of the preliminary injunction on the public interest turns in large part on
whether Plaintiffs’ Constitutional rights are violated by the enforcement of Defendants’ HHS
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Mandate. As the Eleventh Circuit noted, “[I]t is always in the public interest to protect First

Amendment liberties.” K.H Outdoors at 1272-73 (11th Cir. 2006) (quoting Joelner v.Vil. of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004)). As explained above, the enforcement of

Defendants’ HHS Mandate is a direct violation of Plaintiffs’ fundamental rights. Therefore, the

public interest is best served by preventing Defendants from compelling Plaintiffs to violate their

religious beliefs and rights of conscience, protected by RFRA and the First Amendment.

Monaghan, slip. op. at *19 (March 14, 2013).

Unless this Court issues injunctive relief from the HHS Mandate, Plaintiffs inescapably

must choose between violating their religious beliefs or suffering massive financial penalties and

harm to their goodwill and sustainability. Without an injunction, Plaintiffs will be irreparably

harmed.

CONCLUSION

For the reasons stated, Plaintiffs hereby request that this court issue preliminarily enjoin

Defendants’ requirement that Plaintiffs cover emergency contraception, abortifacients, and

counseling and education for the same in the Plaintiff Beckwith Electric employee group health

plan. Respectfully submitted this 13th day of May, 2013.

THOMAS MORE LAW CENTER /s/ Erin Elizabeth Mersino
Erin Elizabeth Mersino, Esq. (P70886)* Richard Thompson, Esq. (P21410)* 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, Michigan 48106 Tel (734) 827-2001 emersino@thomasmore.org TRIAL COUNSEL *Pro hac vice

FOWLER WHITE BOGGS P.A. /s/ Scott Richards Paul R. Pizzo (Florida Bar 113794) Scott Richards (Florida Bar 0072657) 501 E. Kennedy Boulevard Suite 1700 Tampa, Florida 33602 Tel (813) 228-7411 ppizzo@fowlerwhite.com

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CERTIFICATE OF SERVICE

I certify that on May 13, 2013, a copy of the foregoing was filed electronically using the

Court’s CM/ECF system, which will send electronic notices to all counsel of record. I certify

that a copy of the foregoing has been served by certified U.S. Mail upon all parties for whom

counsel has not yet entered an appearance electronically:

Kathleen Sebelius Department of Health and Human Services 200 Independence Avenue, SW Washington, DC 20201

Office of the General Counsel Department of Health and Human Services 200 Independence Avenue, SW Room 713F Washington, DC 20201

Seth D. Harris, Acting Secretary Department of Labor 200 Constitution Ave., N.W. Washington, DC 20210

Department of Labor 200 Constitution Ave., N.W. Room N 2427 Washington, DC 20210

Jack Lew Department of Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220

Department of Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220

Eric Holder Office of the Attorney General Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

Robert O’Neill U.S. Attorney for the Middle District of Florida 400 North Tampa Street Suite 3200 Tampa, Florida 33602

and via certified U.S. Mail and facsimile to:

Counsel for Defendants, United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20001 Tel: (202) 514-3367 Fax: (202) 616-8470
FOWLER WHITE BOGGS P.A.

/s/ Scott Richards Scott Richards (Florida Bar 72657)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

BECKWITH ELECTRIC CO., INC.; and THOMAS R. BECKWITH, Chief Executive Officer and Primary Shareholder of Beckwith Electric Co., Inc.
Plaintiffs, v.

Case No. 8:13-cv-00648 Hon. Judge Elizabeth A. Kovachevich Magistrate Judge Mark A. Pizzo

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACK LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,

Defendants.

AMICUS CURIAE BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION AND THE AMERICAN CIVIL LIBERTIES UNION OF FLORIDA IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
INTRODUCTION The American Civil Liberties Union and the American Civil Liberties Union of Florida (collectively “ACLU”) submit this amicus brief in support of Defendants’ opposition to Plaintiffs’ motion for a preliminary injunction, specifically on the issue of whether Plaintiffs are likely to succeed on the merits of their claims. The right to practice one’s religion, or no religion, is a core component of our civil liberties and is of vital importance to the ACLU. For this reason, Amici routinely bring cases designed to protect the right to worship and express

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religious beliefs. The ACLU is also fiercely committed to fighting discrimination and inequality, including discrimination based on gender. Indeed, since 1972, the ACLU has worked to secure gender equality and ensure that women and girls are able to lead lives of dignity, free from violence and discrimination. An important component of gender equality is the ability of women to have full control of their reproductive lives, and to be able to decide whether and when to have children.
Amici do not repeat Defendants’ arguments. Rather, Amici submit this brief to provide historical context to support Defendants’ argument that Plaintiffs are unlikely to succeed on the merits of their claim that the federal contraception rule infringes on Plaintiffs’ religious liberty. The claims raised by Plaintiffs – that they have a right to discriminate against women and deny them benefits because of the companies’ owners’ religious beliefs – are, unfortunately, not new. In the past, private employers have attempted to use their religious beliefs to evade compliance with anti-discrimination laws. For example, a secular school instituted a “Protestant-only” hiring policy based on the school’s founder’s religious preferences; employers claimed their right to religious freedom entitled them to pay men – who they considered to be the head of household based on their religious beliefs – more than women; businesses claimed that their right to religious liberty entitled them to discriminate against African-American customers in public accommodations; and universities claimed a religious liberty right to discriminate against African-American students. Fortunately, in each of these cases, courts squarely rejected the claims, recognizing that the right to religious liberty does not encompass the right to discriminate against others or evade laws designed to combat discrimination. This Court should come to the same conclusion here. Indeed, acceptance of Plaintiffs’ claims would not only contravene this clear and consistent precedent, but would also open the door for arguments that countless anti-
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discrimination and other important laws should be unenforceable in the face of a claim that the discrimination is mandated by a religious belief.
FACTUAL BACKGROUND The Patient Protection and Affordable Care Act (“ACA”) provides that certain preventive services must be provided in health insurance plans without cost-sharing. Pub. L. No. 111-148, sec. 1001, § 2713(a), 124 Stat. 131 (2010). In an effort to help eliminate some forms of gender inequality by equalizing men and women’s health care coverage, Congress added the Women’s Health Amendment (“WHA”) to the ACA, which requires health insurance plans to cover additional preventive services for women. Pub. L. No. 111-148, sec. 1001, § 2713(a)(4), 124 Stat. 131 (2010). The WHA was crucial to ensuring that women receive coverage for preventive services. Indeed, prior to its introduction, coverage for these services was absent from the ACA. See 155 Cong. Rec. S11979, S11987 (daily ed. Nov. 30, 2009) (statement of Sen. Mikulski) (noting that the ACA did not cover key preventive services for women). In passing the WHA, Senator Reid explained that the WHA was necessary for “millions of women who are being discriminated against . . . .” 155 Cong. Rec. at S12020 (daily ed. Dec 1, 2009) (statement of Sen. Reid). As Senator Mikulski noted: “Often those things unique to women have not been included in health care reform. Today we guarantee it and we assure it and we make it affordable by dealing with copayments and deductibles . . . .” 155 Cong. Rec. at S11988 (daily ed. Nov. 30, 2009) (statement of Sen. Mikulski) (emphasis added). In particular, Congress intended to address gender disparities in out-of-pocket health care costs, much of which stem from reproductive health care: Not only do [women] pay more for the coverage we seek for the same age and the same coverage as men do, but in general women of childbearing age spend 68
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percent more in out-of-pocket health care costs than men. . . . This fundamental inequity in the current system is dangerous and discriminatory and we must act. The prevention section of the bill before us must be amended so coverage of preventive services takes into account the unique health care needs of women throughout their lifespan. 155 Cong. Rec. at S12027 (daily ed. Dec. 1, 2009) (statement of Sen. Gillibrand). To implement the WHA, the Institute of Medicine (“IOM”), an independent, nonprofit organization that works outside of government to provide unbiased and authoritative advice to decision makers and the public, “review[ed] what preventive services are necessary for women’s health and well-being” and developed recommendations for comprehensive guidelines. INSTITUTE OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1 (prepublication ed.) (2011) (“CLOSING THE GAPS”). Among other things, the report recommended that the preventive services include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Id. at 94. On August 1, 2011, the Department of Health and Human Services (“HHS”) adopted these recommendations, including the recommendation on contraceptive services. See 45 C.F.R. § 147.130(b)(1); Health Resources and Services Administration, U.S. Dep’t of Health & Human Servs., Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/.1 In announcing the final rule, the government recognized that the ability to access contraception is essential to women’s ability to participate fully in society. Indeed, as the government explained, the inability of women to access contraception
1 The contraception rule exempts houses of worship, 45 C.F.R. § 147.130(a)(iv)(A) and (B), and the federal government is in process of modifying the rule as applied to religiously affiliated non-profit employers. The modification will ensure employees will receive contraception coverage but that the employer will not bear the cost, 77 Fed. Reg. 16501.
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[P]laces women in the workforce at a disadvantage compared to their male coworkers. Researchers have shown that access to contraception improves the social and economic status of women. Contraception coverage, by reducing the number of unintended and potentially unhealthy pregnancies, furthers the goal of eliminating this disparity by allowing women to achieve equal status as healthy and productive members of the job force. . . . The [federal government] aim[s] to reduce these disparities by providing women broad access to preventive services, including contraceptive services. 77 Fed. Reg. 8725, 8728. In addition, the government recognized that cost is a real barrier to contraceptive access. The IOM found that “[d]espite increases in private health insurance coverage of contraception since the 1990s, many women do not have insurance coverage or are in health plans in which copayments for visits and for prescriptions have increased in recent years.” CLOSING THE GAPS at 94. Contraceptive copays can be so expensive that women can pay almost as much out-ofpocket as they would without coverage at all. Su-Ying Liang et al., Women’s Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006 , 83 Contraception 491, 531 (June 2010). Cost barriers are aggravated by the fact that women “typically earn less than men and [] disproportionately have low incomes.” CLOSING THE GAPS at 19. Women who lack access to contraception face “barriers . . . that prevent women from achieving health and well-being for themselves and their families.” Id. at 20. The federal contraception rule, if undisturbed, will ensure that millions of women have access to contraception without cost barriers, thereby equalizing the health insurance costs between women and men and ensuring women’s ability to equally participate in society.
ARGUMENT One of the main questions in this case is whether secular, for-profit corporations can discriminate against their female employees by denying them the benefits the government has found to be a critical means of helping promote women’s equality and eradicating
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discrimination. While today’s controversy centers around health insurance benefits for contraception, the plaintiffs’ claim – that religious objections can trump neutral laws designed to eradicate discrimination – is not unique to this context. Indeed, it has arisen in numerous other contexts over the last five decades, and has been consistently and resoundingly rejected. For example:
● Twenty years ago, in 1993, a secular, private school maintained a “Protestantonly” hiring policy based on the school’s founder’s religious beliefs. Based on this policy, the school refused to hire a substitute French language teacher because she was not Protestant. EEOC v. Kamehameha Schs./Bishop Estate, 990 F.2d 458 (9th Cir. 1993).
● In 1976, Roanoke Valley Christian Schools added a “head of household” supplement to their teachers’ salaries – but only for heads of household as determined by their interpretation of Scripture. For Roanoke Valley, that meant married men. According to the church pastor affiliated with the school, “[w]hen we turned to the Scriptures to determine head of household, by scriptural basis, we found that the Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family.” Dole v. Shenandoah Baptist Church , 899 F.2d 1389, 1392 (4th Cir. 1990). When sued under the Equal Pay Act, Roanoke Valley claimed a right to an exemption from equal pay laws because its “head-of-household practice was based on a sincerely-held belief derived from the Bible.” Id. at 1397.
● In 1966, three African-American residents of South Carolina brought a suit against Piggie Park restaurants, and their owner, Maurice Bessinger, for refusal to serve them. Bessinger argued that enforcement of the Civil Rights Act of 1964’s public accommodations provision violated his religious freedom “since his religious beliefs compel[led] him to oppose any integration of the races whatever.” Newman v. Piggie Park Enters., Inc. , 256 F. Supp. 941,
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944 (D.S.C. 1966), aff’d in relevant part and r ev’d in part on other grounds , 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968).
● In the 1980s, Bob Jones University, a religiously affiliated school in South Carolina, wanted an exemption from a rule denying tax-exempt status to schools that practice racial discrimination. The “sponsors of the University genuinely believe[d] that the Bible forbids interracial dating and marriage,” and it was school policy that students engaged in interracial relationships, or advocacy thereof, would be expelled. Bob Jones Univ. v. U.S. , 461 U.S. 574, 580 (1983). Bob Jones’s lesser-known co-plaintiff, Goldsboro Christian Schools, even opposed integration of the classroom. According to their interpretation of the Bible, “[c]ultural or biological mixing of the races is regarded as a violation of God’s command.” Id. at 583 n.6 (citations omitted).
In each of these cases, entities and individuals tried to invoke the mantle of religious freedom to avoid compliance with laws designed to advance equality, and each time their claims were rejected. As these cases recognized, the right to religious liberty is not absolute. It does not give businesses or individuals carte blanche to discriminate against others, deny others their rights, ignore important laws, or foist their religious beliefs on their employees. As the District Court in South Carolina explained in rejecting the free exercise claim of a restaurant owner who refused to serve African-American customers:
Undoubtedly defendant . . . has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs. Newman, 256 F. Supp. at 945.
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As these cases make clear, because religious liberty is not absolute it cannot automatically trump laws that were passed to further a compelling government interest. This includes laws designed to promote equality and eradicate discrimination. See, e.g., Shenandoah Baptist Church, 899 F.2d at 1398 (religious school must comply with the Equal Pay Act, which was passed to address “serious and endemic problem of employment [gender] discrimination,” which is a compelling government interest); Bob Jones Univ., 461 U.S. at 604 (religious school could not be exempt from IRS policy that required such schools to have nondiscriminatory policies, because eradication of racial discrimination in education is a compelling government interest). The same is true here. As discussed above, and as the government points out in its brief, in passing the Women’s Health Amendment, Congress sought to eradicate gender discrimination in the context of the provision of health care. In passing the ACA, Congress recognized that women of childbearing age pay substantially more for out-of-pocket health care than men, in part because of the costs of contraception. See supra at 3-4. These costs are significant and are a true barrier to women’s access to effective birth control; and these financial barriers are aggravated by the fact that women typically earn less than men.2 Id. Congress thus found that equalizing disparities between men and women in this context is crucial. Id.
This is particularly true where, as here, the benefit at issue is part and parcel of women’s equality in other aspects of their life. The impact of the inability to access contraception falls primarily on women. Access to contraception gives women control of their fertility, enabling them to decide whether and when to become a parent, and allowing women to make educational and employment choices that benefit themselves and their families. For example, researchers
2 Indeed, a recent study has shown that when cost barriers to contraception are removed, women choose a highly effective contraceptive method that is right for them, which ultimately results in fewer unintended pregnancies. Jeffrey Peipert, et al., Preventing Unintended Pregnancies by Providing No-Cost Contraception, 120 Obstetrics & Gynecology 1291 (Dec. 2012).
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have found that the availability of oral contraception has played a significant role in allowing women to attend college and choose post-graduate paths, including law, medicine, dentistry, and business administration. See Claudia Goldin & Lawrence F. Katz, The Power of th e Pill: Oral Contraceptives and Women’s Career and Marriage Decisions, 110 J. OF POL. ECON. 730 (2002), available at http://www.nber.org/papers/w7527. Indeed, professional degree programs saw a sharp increase in women applicants around the time that oral contraceptives became widely available in 1970. Id.
Women’s ability to pursue professional careers because of the ability to control whether and when to have children significantly closed the wage gap between men and women. One study attributes to the pill one-third of the total wage gains for women born in the mid-1940s to early 1950s. Martha J. Bailey, et al., The Opt-In Revolution? Contraception and the Gender Gap in Wages, 26 (2012), available at http://www-personal.umich.edu/~baileymj/Opt_In_ Revolution.pdf. Succinctly put, “[w]omen cannot participate in society, learn, earn, govern, and thrive equally without the ability to determine whether and when to become mothers.” Cornelia T.L. Pillard, Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-Family Policy, 56 EMORY L.J. 941, 976 (2007); see also id. at 975 (recognizing the importance of accessing contraception on the ability to participate in the work force, and without “the means to control and limit reproduction, the average woman would bear twelve to fifteen children in her lifetime”). The Supreme Court has also recognized the direct relationship between women’s reproductive health decisions and their equal participation in society: “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 Se. Pa. v. Casey, 505 U.S. 833, 856 (1992).
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The federal government is not the only one to recognize and act on these gender disparities and the importance of access to contraception to women’s equality. Indeed, 28 states have passed laws requiring employers to cover contraception. 77 Fed. Reg. at 8728. Two of those states, California and New York, faced legal challenges similar to the one at issue here. The high courts of both states rejected those challenges in part because the laws were designed to eradicate gender discrimination in the workplace. See Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92 (Cal. 2004) (recognizing that the statue was passed to equalize health insurance costs between men and women); Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 461, 468 (N.Y. 2006) (noting that the purpose of the statute was to advance equal treatment of women). Those courts acknowledged legislative history similar to that here: women pay much more than men in out-of-pocket health care costs, due in part to the cost of prescription contraception. See Catholic Charities of Sacramento, Inc. , 85 P.3d at 92; Catholic Charities of Diocese of Albany, 859 N.E.2d at 468. Eradicating gender discrimination and disparities in health care costs is undoubtedly a compelling government interest, as recognized by the line of cases discussed above.3 See also EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986) (holding that insurance plan offered only to “head of households,” namely men or single persons, violated Title VII and the Equal Pay Act, and rejecting the school’s free exercise claim because of the compelling government interest in eradicating gender discrimination). The federal contraception rule clearly furthers the compelling government interest of eliminating gender discrimination in the workplace and ensuring gender equality.4
3 As the government discusses, the rule also furthers the compelling interest in ensuring that women have appropriate health care. 4 The federal contraception rule’s constitutionality is not affected by the fact that the ACA requires only those employers with 50 or more employees to provide health insurance, or that the contraception rule exempts houses of worship, but not for-profit employers. See, e.g., Dkt. 10,
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Not only do these neutral anti-discrimination laws further a compelling government interest, but as courts have held, they also minimally – if at all – burden religion. The Sixth Circuit recently denied a motion for an injunction pending appeal in a challenge by another forprofit corporation to the contraceptive rule. Autocam Corp. v. Sebelius, No. 12-2673, slip op. at 2 (6th Cir. Dec. 28, 2012) (attached as Ex. A). The court held that the plaintiffs were unlikely to succeed on the merits of their claims in part because of the “reasoned opinion” of the district court. With respect to the plaintiffs’ Religious Freedom Restoration Act claim, the district court held that the plaintiffs were unlikely to succeed. Autocam Corp. v. Sebelius , No. 12-CV-1096, 2012 WL 6845677, at *5 (W.D. Mich. Dec. 24, 2012). The district court reasoned that abiding by the contraception rule is virtually no different from paying employees a salary, and indeed “[t]he incremental difference between providing the benefit directly, rather than indirectly, is unlikely to qualify as a substantial burden on the . . . Plaintiffs.” Id. at *6. The district court also found that as to the individual owners of the company, the contraception rule is “too attenuated” from any religious objection to contraception and does not require them to “use or buy contraceptives” themselves. Id. at *7. Lastly, the court warned of the far reaching consequences of adopting the plaintiffs’ argument that the court should not “look beyond their sincerely held assertion of a religiously based objection to the mandate to assess whether it actually functions as a substantial burden” because such an argument would subject “virtually every government action to a potential private veto based on a person’s ability to articulate a sincerely held [religious] objection.” Id. And “[s]uch a rule would paralyze the normal process of governing.”
Pls.’ Mot. for Prelim. Inj. at 21-22. Indeed, the same is largely true of Title VII of the Civil Rights Act of 1964. That statute applies to employers with 15 or more employees, and certain religious and religiously identified entities are exempt from the prohibition on discriminating based on an employee’s religion. See 42 U.S.C. §§ 2000e(b), 2000e-1(a). No court has ever intimated that Title VII’s exemptions render the statute unconstitutional as applied to private business owners that seek to use their religious beliefs to discriminate.
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Id. The Third and Tenth Circuits have also denied injunctions pending appeal in other similar challenges to the contraception rule for many of the same reasons. See Conestoga Wood Specialties Corp. v. Se c’y of U.S. Dep’t of Health and Human Servs. , No. 13-1144, 2013 WL 1277419 (3d Cir. Feb. 8, 2013); Hobby Lobby Stores Inc. v. Sebelius , No. 12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012), injunction pending appeal denied , 133 S. Ct. 641 (2012) (Sotomayor, Circuit Justice). Justice Sotomayor, as Circuit Justice for the Tenth Circuit, also denied an emergency request for an injunction pending appeal in Hobby Lobby Stores.
These decisions are consistent with the historical cases that have held that requiring employers to offer their employees equal benefits does not substantially burden religion. For example, in Shenandoah, the court recognized that it would be – at most – a “limited” burden to require the school to comply with the Fair Labor Standards Act (“FLSA”) and pay its female teachers the same as men. As the court recognized, “[t]he fact that [the school] must incur increased payroll expenses to conform to FLSA requirements is not the sort of burden that is determinative in a free exercise claim.” 899 F.2d at 1398. In Shenandoah, the sincerity of the school’s religious beliefs was not questioned, but nevertheless the court held that requiring it to abide by neutral anti-discrimination laws did not impose a substantial burden on those religious beliefs. So too here. Despite Plaintiffs’ sincerely held religiously based opposition to contraception, requiring Plaintiffs to provide their employees with a health plan that includes contraception coverage does not burden Plaintiffs’ religious exercise. The link between the contraceptive coverage requirement and the religiously prohibited behavior is simply too attenuated to amount to a substantial burden. The contraceptive coverage requirement does not require Plaintiffs to physically provide contraception to their employees nor does it require them to endorse the use of contraception. It merely requires Plaintiffs – like the employer in
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Shenandoah – to provide a nondiscriminatory benefit to its employees. And without this benefit, as discussed above, Plaintiffs’ female employees will suffer unequal treatment and disparate health care costs, and may be forced to forgo the most effective methods of contraception.
Furthermore, another line of cases makes clear that Plaintiffs’ claimed injury – an objection to contributing to a health plan that provides coverage for health care services the Plaintiffs find objectionable – is not cognizable. In Goehring v. Brophy, for example, the court addressed and rejected a RFRA claim similar to Plaintiffs’ claim here. 94 F.3d 1294, 1297 (9th Cir. 1996), overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997). In that case, public university students objected to a university’s requirement that they pay a registration fee on the ground that it was used to subsidize the school’s health insurance program, which covered abortion care. Id. The court rejected the plaintiffs’ RFRA and free exercise claims, reasoning that the payments did not impose a substantial burden on the plaintiffs’ religious beliefs. Id. at 1300. Moreover, in Tarsney v. O’Keefe, the Eighth Circuit affirmed the dismissal of a free exercise challenge by taxpayers who objected on religious grounds to the state’s use of their tax dollars to pay for Medicaid recipients’ medically necessary abortions. 225 F.3d 929, 932 (8th Cir. 2000). The payment of taxes that may ultimately subsidize other individuals’ Medicaid abortion coverage, the court explained, was too remote an injury even to accord standing upon the plaintiffs to assert a free exercise claim. Id. at 936; accord Erzinger v. Regents of Univ. of Cal. , 137 Cal. App. 3d 389, 393 (Cal. Ct. App. 1982) (“[T]he fact [that] plaintiffs may object on religious grounds to some of the services the University provides is not a basis upon which plaintiffs can claim a constitutional right not to pay a part of the fees.”). Accordingly, just like those who have objected to paying insurance premiums for an insurance plan that others may use to access abortion care, or taxes that pay for Medicaid, which may be
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used to cover another’s abortion, Plaintiffs here cannot claim any cognizable injury by providing their employees with a health plan that covers contraception, which some employees may use.

CONCLUSION

History has a way of repeating itself. Plaintiffs are attempting to resurrect the long-

discredited notion that religion can be used to trump anti-discrimination or other important laws.

This Court should follow the wise words from the district court in South Carolina five decades

ago, and refuse to “lend credence or support” to the position that entities have a constitutional

right to refuse to comply with laws designed to eradicate discrimination. Newman, 256 F. Supp.

at 945.

For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction should be denied.

Dated this 28th day of May, 2013

Respectfully submitted,

/s/ Yvette Acosta MacMillan Yvette Acosta MacMillan (Fla. Bar. No.: 854300) ACLU Foundation of Florida, Inc. P.O. Box 25477 Tampa, FL 33622-5477 T. 813.288.8390 F. 813.289.5694 yacostamacmillan@aclufl.org
Maria Kayanan (Fla. Bar No. 305601) ACLU Foundation of Florida, Inc. 4500 Biscayne Blvd. Suite 340 Miami, FL 33137 T. 786-363-2700 F. 786-363-3108 mkayanan@aclufl.org

Dan Mach, Esq. (Pro Hac Vice Pending) American Civil Liberties Union Foundation 915 15th St., NW, 6th Floor Washington, DC 20005 T. 202-675-2330 F. 202-546-0738 dmach@aclu.org

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Case 8:13-cv-00648-EAK-MAP Document 23 Filed 05/28/13 Page 15 of 15 PageID 733 Jennifer Lee, Esq. (Pro Hac Vice Pending) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 T. 212-549-2633 F. 212-549-2651 jlee@aclu.org
CERTIFICATE OF SERVICE I hereby certify that on May 28, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
Maria Kayanan Maria Kayanan, Esq.
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

BECKWITH ELECTRIC CO., INC.; and THOMAS R. BECKWITH, Chief Executive Officer and Primary Shareholder of Beckwith Electric Co., Inc.
Plaintiffs, v.

Case No. 8:13-cv-00648 Hon. Judge Elizabeth A. Kovachevich Magistrate Judge Mark A. Pizzo

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACK LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,

Defendants.

AMICUS CURIAE BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION AND THE AMERICAN CIVIL LIBERTIES UNION OF FLORIDA IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
INTRODUCTION The American Civil Liberties Union and the American Civil Liberties Union of Florida (collectively “ACLU”) submit this amicus brief in support of Defendants’ opposition to Plaintiffs’ motion for a preliminary injunction, specifically on the issue of whether Plaintiffs are likely to succeed on the merits of their claims. The right to practice one’s religion, or no religion, is a core component of our civil liberties and is of vital importance to the ACLU. For this reason, Amici routinely bring cases designed to protect the right to worship and express

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religious beliefs. The ACLU is also fiercely committed to fighting discrimination and inequality, including discrimination based on gender. Indeed, since 1972, the ACLU has worked to secure gender equality and ensure that women and girls are able to lead lives of dignity, free from violence and discrimination. An important component of gender equality is the ability of women to have full control of their reproductive lives, and to be able to decide whether and when to have children.
Amici do not repeat Defendants’ arguments. Rather, Amici submit this brief to provide historical context to support Defendants’ argument that Plaintiffs are unlikely to succeed on the merits of their claim that the federal contraception rule infringes on Plaintiffs’ religious liberty. The claims raised by Plaintiffs – that they have a right to discriminate against women and deny them benefits because of the companies’ owners’ religious beliefs – are, unfortunately, not new. In the past, private employers have attempted to use their religious beliefs to evade compliance with anti-discrimination laws. For example, a secular school instituted a “Protestant-only” hiring policy based on the school’s founder’s religious preferences; employers claimed their right to religious freedom entitled them to pay men – who they considered to be the head of household based on their religious beliefs – more than women; businesses claimed that their right to religious liberty entitled them to discriminate against African-American customers in public accommodations; and universities claimed a religious liberty right to discriminate against African-American students. Fortunately, in each of these cases, courts squarely rejected the claims, recognizing that the right to religious liberty does not encompass the right to discriminate against others or evade laws designed to combat discrimination. This Court should come to the same conclusion here. Indeed, acceptance of Plaintiffs’ claims would not only contravene this clear and consistent precedent, but would also open the door for arguments that countless anti-
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discrimination and other important laws should be unenforceable in the face of a claim that the discrimination is mandated by a religious belief.
FACTUAL BACKGROUND The Patient Protection and Affordable Care Act (“ACA”) provides that certain preventive services must be provided in health insurance plans without cost-sharing. Pub. L. No. 111-148, sec. 1001, § 2713(a), 124 Stat. 131 (2010). In an effort to help eliminate some forms of gender inequality by equalizing men and women’s health care coverage, Congress added the Women’s Health Amendment (“WHA”) to the ACA, which requires health insurance plans to cover additional preventive services for women. Pub. L. No. 111-148, sec. 1001, § 2713(a)(4), 124 Stat. 131 (2010). The WHA was crucial to ensuring that women receive coverage for preventive services. Indeed, prior to its introduction, coverage for these services was absent from the ACA. See 155 Cong. Rec. S11979, S11987 (daily ed. Nov. 30, 2009) (statement of Sen. Mikulski) (noting that the ACA did not cover key preventive services for women). In passing the WHA, Senator Reid explained that the WHA was necessary for “millions of women who are being discriminated against . . . .” 155 Cong. Rec. at S12020 (daily ed. Dec 1, 2009) (statement of Sen. Reid). As Senator Mikulski noted: “Often those things unique to women have not been included in health care reform. Today we guarantee it and we assure it and we make it affordable by dealing with copayments and deductibles . . . .” 155 Cong. Rec. at S11988 (daily ed. Nov. 30, 2009) (statement of Sen. Mikulski) (emphasis added). In particular, Congress intended to address gender disparities in out-of-pocket health care costs, much of which stem from reproductive health care: Not only do [women] pay more for the coverage we seek for the same age and the same coverage as men do, but in general women of childbearing age spend 68
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percent more in out-of-pocket health care costs than men. . . . This fundamental inequity in the current system is dangerous and discriminatory and we must act. The prevention section of the bill before us must be amended so coverage of preventive services takes into account the unique health care needs of women throughout their lifespan. 155 Cong. Rec. at S12027 (daily ed. Dec. 1, 2009) (statement of Sen. Gillibrand). To implement the WHA, the Institute of Medicine (“IOM”), an independent, nonprofit organization that works outside of government to provide unbiased and authoritative advice to decision makers and the public, “review[ed] what preventive services are necessary for women’s health and well-being” and developed recommendations for comprehensive guidelines. INSTITUTE OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1 (prepublication ed.) (2011) (“CLOSING THE GAPS”). Among other things, the report recommended that the preventive services include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Id. at 94. On August 1, 2011, the Department of Health and Human Services (“HHS”) adopted these recommendations, including the recommendation on contraceptive services. See 45 C.F.R. § 147.130(b)(1); Health Resources and Services Administration, U.S. Dep’t of Health & Human Servs., Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/.1 In announcing the final rule, the government recognized that the ability to access contraception is essential to women’s ability to participate fully in society. Indeed, as the government explained, the inability of women to access contraception
1 The contraception rule exempts houses of worship, 45 C.F.R. § 147.130(a)(iv)(A) and (B), and the federal government is in process of modifying the rule as applied to religiously affiliated non-profit employers. The modification will ensure employees will receive contraception coverage but that the employer will not bear the cost, 77 Fed. Reg. 16501.
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[P]laces women in the workforce at a disadvantage compared to their male coworkers. Researchers have shown that access to contraception improves the social and economic status of women. Contraception coverage, by reducing the number of unintended and potentially unhealthy pregnancies, furthers the goal of eliminating this disparity by allowing women to achieve equal status as healthy and productive members of the job force. . . . The [federal government] aim[s] to reduce these disparities by providing women broad access to preventive services, including contraceptive services. 77 Fed. Reg. 8725, 8728. In addition, the government recognized that cost is a real barrier to contraceptive access. The IOM found that “[d]espite increases in private health insurance coverage of contraception since the 1990s, many women do not have insurance coverage or are in health plans in which copayments for visits and for prescriptions have increased in recent years.” CLOSING THE GAPS at 94. Contraceptive copays can be so expensive that women can pay almost as much out-ofpocket as they would without coverage at all. Su-Ying Liang et al., Women’s Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006 , 83 Contraception 491, 531 (June 2010). Cost barriers are aggravated by the fact that women “typically earn less than men and [] disproportionately have low incomes.” CLOSING THE GAPS at 19. Women who lack access to contraception face “barriers . . . that prevent women from achieving health and well-being for themselves and their families.” Id. at 20. The federal contraception rule, if undisturbed, will ensure that millions of women have access to contraception without cost barriers, thereby equalizing the health insurance costs between women and men and ensuring women’s ability to equally participate in society.
ARGUMENT One of the main questions in this case is whether secular, for-profit corporations can discriminate against their female employees by denying them the benefits the government has found to be a critical means of helping promote women’s equality and eradicating
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discrimination. While today’s controversy centers around health insurance benefits for contraception, the plaintiffs’ claim – that religious objections can trump neutral laws designed to eradicate discrimination – is not unique to this context. Indeed, it has arisen in numerous other contexts over the last five decades, and has been consistently and resoundingly rejected. For example:
● Twenty years ago, in 1993, a secular, private school maintained a “Protestantonly” hiring policy based on the school’s founder’s religious beliefs. Based on this policy, the school refused to hire a substitute French language teacher because she was not Protestant. EEOC v. Kamehameha Schs./Bishop Estate, 990 F.2d 458 (9th Cir. 1993).
● In 1976, Roanoke Valley Christian Schools added a “head of household” supplement to their teachers’ salaries – but only for heads of household as determined by their interpretation of Scripture. For Roanoke Valley, that meant married men. According to the church pastor affiliated with the school, “[w]hen we turned to the Scriptures to determine head of household, by scriptural basis, we found that the Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family.” Dole v. Shenandoah Baptist Church , 899 F.2d 1389, 1392 (4th Cir. 1990). When sued under the Equal Pay Act, Roanoke Valley claimed a right to an exemption from equal pay laws because its “head-of-household practice was based on a sincerely-held belief derived from the Bible.” Id. at 1397.
● In 1966, three African-American residents of South Carolina brought a suit against Piggie Park restaurants, and their owner, Maurice Bessinger, for refusal to serve them. Bessinger argued that enforcement of the Civil Rights Act of 1964’s public accommodations provision violated his religious freedom “since his religious beliefs compel[led] him to oppose any integration of the races whatever.” Newman v. Piggie Park Enters., Inc. , 256 F. Supp. 941,
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944 (D.S.C. 1966), aff’d in relevant part and r ev’d in part on other grounds , 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968).
● In the 1980s, Bob Jones University, a religiously affiliated school in South Carolina, wanted an exemption from a rule denying tax-exempt status to schools that practice racial discrimination. The “sponsors of the University genuinely believe[d] that the Bible forbids interracial dating and marriage,” and it was school policy that students engaged in interracial relationships, or advocacy thereof, would be expelled. Bob Jones Univ. v. U.S. , 461 U.S. 574, 580 (1983). Bob Jones’s lesser-known co-plaintiff, Goldsboro Christian Schools, even opposed integration of the classroom. According to their interpretation of the Bible, “[c]ultural or biological mixing of the races is regarded as a violation of God’s command.” Id. at 583 n.6 (citations omitted).
In each of these cases, entities and individuals tried to invoke the mantle of religious freedom to avoid compliance with laws designed to advance equality, and each time their claims were rejected. As these cases recognized, the right to religious liberty is not absolute. It does not give businesses or individuals carte blanche to discriminate against others, deny others their rights, ignore important laws, or foist their religious beliefs on their employees. As the District Court in South Carolina explained in rejecting the free exercise claim of a restaurant owner who refused to serve African-American customers:
Undoubtedly defendant . . . has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs. Newman, 256 F. Supp. at 945.
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As these cases make clear, because religious liberty is not absolute it cannot automatically trump laws that were passed to further a compelling government interest. This includes laws designed to promote equality and eradicate discrimination. See, e.g., Shenandoah Baptist Church, 899 F.2d at 1398 (religious school must comply with the Equal Pay Act, which was passed to address “serious and endemic problem of employment [gender] discrimination,” which is a compelling government interest); Bob Jones Univ., 461 U.S. at 604 (religious school could not be exempt from IRS policy that required such schools to have nondiscriminatory policies, because eradication of racial discrimination in education is a compelling government interest). The same is true here. As discussed above, and as the government points out in its brief, in passing the Women’s Health Amendment, Congress sought to eradicate gender discrimination in the context of the provision of health care. In passing the ACA, Congress recognized that women of childbearing age pay substantially more for out-of-pocket health care than men, in part because of the costs of contraception. See supra at 3-4. These costs are significant and are a true barrier to women’s access to effective birth control; and these financial barriers are aggravated by the fact that women typically earn less than men.2 Id. Congress thus found that equalizing disparities between men and women in this context is crucial. Id.
This is particularly true where, as here, the benefit at issue is part and parcel of women’s equality in other aspects of their life. The impact of the inability to access contraception falls primarily on women. Access to contraception gives women control of their fertility, enabling them to decide whether and when to become a parent, and allowing women to make educational and employment choices that benefit themselves and their families. For example, researchers
2 Indeed, a recent study has shown that when cost barriers to contraception are removed, women choose a highly effective contraceptive method that is right for them, which ultimately results in fewer unintended pregnancies. Jeffrey Peipert, et al., Preventing Unintended Pregnancies by Providing No-Cost Contraception, 120 Obstetrics & Gynecology 1291 (Dec. 2012).
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have found that the availability of oral contraception has played a significant role in allowing women to attend college and choose post-graduate paths, including law, medicine, dentistry, and business administration. See Claudia Goldin & Lawrence F. Katz, The Power of th e Pill: Oral Contraceptives and Women’s Career and Marriage Decisions, 110 J. OF POL. ECON. 730 (2002), available at http://www.nber.org/papers/w7527. Indeed, professional degree programs saw a sharp increase in women applicants around the time that oral contraceptives became widely available in 1970. Id.
Women’s ability to pursue professional careers because of the ability to control whether and when to have children significantly closed the wage gap between men and women. One study attributes to the pill one-third of the total wage gains for women born in the mid-1940s to early 1950s. Martha J. Bailey, et al., The Opt-In Revolution? Contraception and the Gender Gap in Wages, 26 (2012), available at http://www-personal.umich.edu/~baileymj/Opt_In_ Revolution.pdf. Succinctly put, “[w]omen cannot participate in society, learn, earn, govern, and thrive equally without the ability to determine whether and when to become mothers.” Cornelia T.L. Pillard, Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-Family Policy, 56 EMORY L.J. 941, 976 (2007); see also id. at 975 (recognizing the importance of accessing contraception on the ability to participate in the work force, and without “the means to control and limit reproduction, the average woman would bear twelve to fifteen children in her lifetime”). The Supreme Court has also recognized the direct relationship between women’s reproductive health decisions and their equal participation in society: “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 Se. Pa. v. Casey, 505 U.S. 833, 856 (1992).
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The federal government is not the only one to recognize and act on these gender disparities and the importance of access to contraception to women’s equality. Indeed, 28 states have passed laws requiring employers to cover contraception. 77 Fed. Reg. at 8728. Two of those states, California and New York, faced legal challenges similar to the one at issue here. The high courts of both states rejected those challenges in part because the laws were designed to eradicate gender discrimination in the workplace. See Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92 (Cal. 2004) (recognizing that the statue was passed to equalize health insurance costs between men and women); Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 461, 468 (N.Y. 2006) (noting that the purpose of the statute was to advance equal treatment of women). Those courts acknowledged legislative history similar to that here: women pay much more than men in out-of-pocket health care costs, due in part to the cost of prescription contraception. See Catholic Charities of Sacramento, Inc. , 85 P.3d at 92; Catholic Charities of Diocese of Albany, 859 N.E.2d at 468. Eradicating gender discrimination and disparities in health care costs is undoubtedly a compelling government interest, as recognized by the line of cases discussed above.3 See also EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986) (holding that insurance plan offered only to “head of households,” namely men or single persons, violated Title VII and the Equal Pay Act, and rejecting the school’s free exercise claim because of the compelling government interest in eradicating gender discrimination). The federal contraception rule clearly furthers the compelling government interest of eliminating gender discrimination in the workplace and ensuring gender equality.4
3 As the government discusses, the rule also furthers the compelling interest in ensuring that women have appropriate health care. 4 The federal contraception rule’s constitutionality is not affected by the fact that the ACA requires only those employers with 50 or more employees to provide health insurance, or that the contraception rule exempts houses of worship, but not for-profit employers. See, e.g., Dkt. 10,
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Not only do these neutral anti-discrimination laws further a compelling government interest, but as courts have held, they also minimally – if at all – burden religion. The Sixth Circuit recently denied a motion for an injunction pending appeal in a challenge by another forprofit corporation to the contraceptive rule. Autocam Corp. v. Sebelius, No. 12-2673, slip op. at 2 (6th Cir. Dec. 28, 2012) (attached as Ex. A). The court held that the plaintiffs were unlikely to succeed on the merits of their claims in part because of the “reasoned opinion” of the district court. With respect to the plaintiffs’ Religious Freedom Restoration Act claim, the district court held that the plaintiffs were unlikely to succeed. Autocam Corp. v. Sebelius , No. 12-CV-1096, 2012 WL 6845677, at *5 (W.D. Mich. Dec. 24, 2012). The district court reasoned that abiding by the contraception rule is virtually no different from paying employees a salary, and indeed “[t]he incremental difference between providing the benefit directly, rather than indirectly, is unlikely to qualify as a substantial burden on the . . . Plaintiffs.” Id. at *6. The district court also found that as to the individual owners of the company, the contraception rule is “too attenuated” from any religious objection to contraception and does not require them to “use or buy contraceptives” themselves. Id. at *7. Lastly, the court warned of the far reaching consequences of adopting the plaintiffs’ argument that the court should not “look beyond their sincerely held assertion of a religiously based objection to the mandate to assess whether it actually functions as a substantial burden” because such an argument would subject “virtually every government action to a potential private veto based on a person’s ability to articulate a sincerely held [religious] objection.” Id. And “[s]uch a rule would paralyze the normal process of governing.”
Pls.’ Mot. for Prelim. Inj. at 21-22. Indeed, the same is largely true of Title VII of the Civil Rights Act of 1964. That statute applies to employers with 15 or more employees, and certain religious and religiously identified entities are exempt from the prohibition on discriminating based on an employee’s religion. See 42 U.S.C. §§ 2000e(b), 2000e-1(a). No court has ever intimated that Title VII’s exemptions render the statute unconstitutional as applied to private business owners that seek to use their religious beliefs to discriminate.
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Id. The Third and Tenth Circuits have also denied injunctions pending appeal in other similar challenges to the contraception rule for many of the same reasons. See Conestoga Wood Specialties Corp. v. Se c’y of U.S. Dep’t of Health and Human Servs. , No. 13-1144, 2013 WL 1277419 (3d Cir. Feb. 8, 2013); Hobby Lobby Stores Inc. v. Sebelius , No. 12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012), injunction pending appeal denied , 133 S. Ct. 641 (2012) (Sotomayor, Circuit Justice). Justice Sotomayor, as Circuit Justice for the Tenth Circuit, also denied an emergency request for an injunction pending appeal in Hobby Lobby Stores.
These decisions are consistent with the historical cases that have held that requiring employers to offer their employees equal benefits does not substantially burden religion. For example, in Shenandoah, the court recognized that it would be – at most – a “limited” burden to require the school to comply with the Fair Labor Standards Act (“FLSA”) and pay its female teachers the same as men. As the court recognized, “[t]he fact that [the school] must incur increased payroll expenses to conform to FLSA requirements is not the sort of burden that is determinative in a free exercise claim.” 899 F.2d at 1398. In Shenandoah, the sincerity of the school’s religious beliefs was not questioned, but nevertheless the court held that requiring it to abide by neutral anti-discrimination laws did not impose a substantial burden on those religious beliefs. So too here. Despite Plaintiffs’ sincerely held religiously based opposition to contraception, requiring Plaintiffs to provide their employees with a health plan that includes contraception coverage does not burden Plaintiffs’ religious exercise. The link between the contraceptive coverage requirement and the religiously prohibited behavior is simply too attenuated to amount to a substantial burden. The contraceptive coverage requirement does not require Plaintiffs to physically provide contraception to their employees nor does it require them to endorse the use of contraception. It merely requires Plaintiffs – like the employer in
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Shenandoah – to provide a nondiscriminatory benefit to its employees. And without this benefit, as discussed above, Plaintiffs’ female employees will suffer unequal treatment and disparate health care costs, and may be forced to forgo the most effective methods of contraception.
Furthermore, another line of cases makes clear that Plaintiffs’ claimed injury – an objection to contributing to a health plan that provides coverage for health care services the Plaintiffs find objectionable – is not cognizable. In Goehring v. Brophy, for example, the court addressed and rejected a RFRA claim similar to Plaintiffs’ claim here. 94 F.3d 1294, 1297 (9th Cir. 1996), overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997). In that case, public university students objected to a university’s requirement that they pay a registration fee on the ground that it was used to subsidize the school’s health insurance program, which covered abortion care. Id. The court rejected the plaintiffs’ RFRA and free exercise claims, reasoning that the payments did not impose a substantial burden on the plaintiffs’ religious beliefs. Id. at 1300. Moreover, in Tarsney v. O’Keefe, the Eighth Circuit affirmed the dismissal of a free exercise challenge by taxpayers who objected on religious grounds to the state’s use of their tax dollars to pay for Medicaid recipients’ medically necessary abortions. 225 F.3d 929, 932 (8th Cir. 2000). The payment of taxes that may ultimately subsidize other individuals’ Medicaid abortion coverage, the court explained, was too remote an injury even to accord standing upon the plaintiffs to assert a free exercise claim. Id. at 936; accord Erzinger v. Regents of Univ. of Cal. , 137 Cal. App. 3d 389, 393 (Cal. Ct. App. 1982) (“[T]he fact [that] plaintiffs may object on religious grounds to some of the services the University provides is not a basis upon which plaintiffs can claim a constitutional right not to pay a part of the fees.”). Accordingly, just like those who have objected to paying insurance premiums for an insurance plan that others may use to access abortion care, or taxes that pay for Medicaid, which may be
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used to cover another’s abortion, Plaintiffs here cannot claim any cognizable injury by providing their employees with a health plan that covers contraception, which some employees may use.

CONCLUSION

History has a way of repeating itself. Plaintiffs are attempting to resurrect the long-

discredited notion that religion can be used to trump anti-discrimination or other important laws.

This Court should follow the wise words from the district court in South Carolina five decades

ago, and refuse to “lend credence or support” to the position that entities have a constitutional

right to refuse to comply with laws designed to eradicate discrimination. Newman, 256 F. Supp.

at 945.

For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction should be denied.

Dated this 28th day of May, 2013

Respectfully submitted,

/s/ Yvette Acosta MacMillan Yvette Acosta MacMillan (Fla. Bar. No.: 854300) ACLU Foundation of Florida, Inc. P.O. Box 25477 Tampa, FL 33622-5477 T. 813.288.8390 F. 813.289.5694 yacostamacmillan@aclufl.org
Maria Kayanan (Fla. Bar No. 305601) ACLU Foundation of Florida, Inc. 4500 Biscayne Blvd. Suite 340 Miami, FL 33137 T. 786-363-2700 F. 786-363-3108 mkayanan@aclufl.org

Dan Mach, Esq. (Pro Hac Vice Pending) American Civil Liberties Union Foundation 915 15th St., NW, 6th Floor Washington, DC 20005 T. 202-675-2330 F. 202-546-0738 dmach@aclu.org

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Case 8:13-cv-00648-EAK-MAP Document 23 Filed 05/28/13 Page 15 of 15 PageID 733 Jennifer Lee, Esq. (Pro Hac Vice Pending) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 T. 212-549-2633 F. 212-549-2651 jlee@aclu.org
CERTIFICATE OF SERVICE I hereby certify that on May 28, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
Maria Kayanan Maria Kayanan, Esq.
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 Case 8:13-cv-00648-EAK-MAP Document 36 Filed 06/06/13 Page 1 of 14 PageID 857

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BECKWITH ELECTRIC CO., INC.; and THOMAS R. BECKWITH, Chief Executive Officer and Primary Shareholder of Beckwith Electric Co., Inc.,

Plaintiffs,

v.

Case No. 8:13-cv-00648-EAK-MAP

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACK LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,

Hon. Elizabeth A. Kovachevich Magistrate Judge Mark A. Pizzo

Defendants. __________________________________________/

MEMORANDUM OF THE STATE OF FLORIDA, BY ATTORNEY GENERAL PAM BONDI, AS AMICUS CURIAE IN SUPPORT OF PLANTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

The State of Florida, by Attorney General Pam Bondi, as amicus curiae, hereby submits

this memorandum in support of Plaintiffs’ Motion for Preliminary Injunction (Doc. 10).

Introduction and Statement of Interest

Florida law zealously protects religious liberties. Florida’s Constitution guarantees that

“[t]here shall be no law respecting the establishment of religion prohibiting or penalizing the free

exercise thereof.” Fla. Const. art. I, § 3. Its statutes provide that “[t]he government shall not

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substantially burden a person’s exercise of religion,” with exceptions similar to those under the federal Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb et seq. (“RFRA”). Compare Fla. Stat. § 761.03 with 42 U.S.C. § 2000bb-1. Under Florida law, government may neither “compel[] the religious adherent to engage in conduct that his religion forbids . . . [n]or forbid[] him to engage in conduct that his religion requires.” Warner v. City of Boca Raton, 887 So. 2d 1023, 1033 (Fla. 2004).
The religious liberty claim in this case was filed by a Florida business and business owner. Beckwith Electric Company and Thomas R. Beckwith contend that the HHS Mandate violates their religious liberty under both the RFRA and the First Amendment, by requiring them to provide certain insurance products and services to their employees that violate their religious convictions and core tenets of their Baptist faith.
These are exactly the liberties that federal and Florida laws strictly protect and which the State, through the Attorney General, seeks to vindicate here. In cases such as these, Florida law empowers the Attorney General, Fla. Stat. § 16.01, as the People’s chief legal officer, to appear in legal matters and attend to the legal issues raised where, as here, the State has a substantial interest in how those issues are resolved.
The Attorney General advances three points: (1) the RFRA and the First Amendment apply to businesses that operate according to religious principles, even if they are not operated by a religious organization; (2) the HHS Mandate at issue imposes a substantial burden on Plaintiffs’ free exercise of religion; and (3) there are no compelling reasons to apply the Mandate to Plaintiffs and other similarly-situated persons, particularly where there are less restrictive means by which the federal government could assure access to reproductive services.
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Argument

The Plaintiffs’ religious liberties should be protected from a federal mandate – to provide

reproductive products and services, including early abortion-inducing drugs, in their employee

insurance plans – that directly conflicts with their religious beliefs. The mandate at issue here

conflicts with clear Southern Baptist Church tenets by which Beckwith Electric Company, a

Florida business, and its principal owner, Thomas R. Beckwith, operate the business. Beckwith

Electric has designed its health insurance policies with Humana to exclude abortifacient drugs

and other services that violate Plaintiffs’ religious principles. The HHS Mandate, in requiring

Plaintiffs to provide reproductive products and services, would substantially burden Plaintiffs’

constitutionally and statutorily protected religious freedom, as it would the religious freedom of

all similarly situated Floridians.

I.

THE FUNDAMENTAL RIGHT TO EXERCISE RELIGIOUS FREEDOM

EXTENDS TO PERSONS AND THEIR BUSINESSES, REGARDLESS OF

WHETHER THE BUSINESSES ARE INDEPENDENT OF RELIGIOUS

ORGANIZATIONS.

It is well settled, and beyond reasonable dispute, that the First Amendment’s protections

of speech and association apply equally to religious and secular organizations. Citizens United v.

Fed. Election Comm’n, 558 U.S. 310, 130 S. Ct. 876, 900 (2010) (“The Court has thus rejected

the argument that political speech of corporations or other associations should be treated

differently under the First Amendment simply because such associations are not ‘natural

persons.’”). Indeed, Supreme Court precedent rejects any claim that the First Amendment’s

enumerated freedoms do not apply to secular businesses:

Freedom of speech and the other freedoms encompassed by the First Amendment always have been viewed as fundamental components of the liberty safeguarded by the Due Process Clause, and the Court has not identified a separate source for the right when it has been asserted by corporations.

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First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 780 (1978) (citations omitted; emphasis added).
Thus, the First Amendment makes no distinction, in its protections of free exercise of religion and free speech, as between organizations and individuals or as between religious corporations and secular ones. Corporations are a legally-recognized form by which human beings – themselves cloaked with the religious and speech liberties under the First Amendment – associate and, together, form businesses in the hope of providing goods or services to others. Hence, a corporation must be protected as a “person” under the First Amendment. It follows that a corporation also must be accorded that same recognition and protection under 42 U.S.C. § 2000bb-1 of the RFRA. See 42 U.S.C. § 2000bb(a) (securing traditional federal First Amendment protections under the RFRA).1
In a departure from these settled principles, the district court in Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012), adopted the argument that secular businesses are not protected by the First Amendment and are not protected under the RFRA. Id. at 1292. The court, plainly viewing corporations as abstract entities devoid of human motive and activity, stated:
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 take 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.
1 But see Holy Land Found. for Relief and Dev. v. Ashcroft, 333 F.3d 156, 167 (D.C. Cir. 2003) (reserving the question but casting doubt on whether a non-profit corporation was a “person” within the meaning of the RFRA).
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Id. After reaching this spurious conclusion – the very kind that Congress rejected in enacting the RFRA, as shown infra – the court then determined that the corporation’s owners could not invoke the RFRA because the restrictions on religious liberty at issue had not been imposed on the owners, but on their corporation. Id. at 1294. See also Gilardi v. Sebelius, 2013 WL 781150, *7-8 (D.D.C. Mar. 3, 2013) (finding specific “secular for-profit companies” not to be exercising religion, yet declining to “reach the question of whether any secular, for-profit corporation can exercise religion.”) (emphasis in original).
The Seventh Circuit has rejected this asserted basis for denying religious freedom, recognizing that this freedom is not lost simply because a person operates a for-profit business. The court stated:
That the Kortes operate their business in the corporate form is not dispositive of their claim. See generally Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). . . . [T]he Kortes would have to violate their religious beliefs to operate their company in compliance with [the contraception mandate]. Korte v. Sebelius, 2012 WL 6757353, *3 (7th Cir. Dec. 28, 2012). See also Grote v. Sebelius, 708 F.3d 850 (7th Cir. Jan. 30, 2013) (recognizing freedom of religion for secular, for-profit business). The suggestion that a privately-owned business has no religious protections because it engages in secular commercial transactions reflects a profound misunderstanding of both the First Amendment and the RFRA, and offends the religious liberty of closely-held and family-run businesses. Such a view would confine religious freedom to only those entities that are owned by religious institutions or that sell exclusively religious goods, effectively walling religious freedom off from the rest of society in its pervasive commercial context. The First Amendment knows no such restriction. It exists to protect its enumerated freedoms on behalf of everyone,
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and not just religious organizations. To argue otherwise ignores that a business may be established and operated based on religious principles even if its mission is secular in nature.
The confinement of religious liberty to religious organizations contravenes the United States Constitution and laws promulgated pursuant to it, including the RFRA. Under the RFRA, Congress has provided for the protection of free exercise of religion rights from laws of “general applicability.” 42 U.S.C. § 2000bb-1(a). Thus, as a matter of law, corporations, like the persons who own and operate them, are entitled to be protected against government intrusion into their religious freedom. II. THE HHS MANDATE IMPOSES A SUBSTANTIAL BURDEN ON PLAINTIFFS’
EXERCISE OF THEIR RELIGIOUS FREEDOM. The only exception to the prohibition of a government-imposed limitation on religious
freedom arises where the government can prove that the limitation both (1) “is in furtherance of a compelling governmental interest,” and (2) “is the least restrictive means of furthering that compelling governmental interest.” RFRA, 42 U.S.C. § 2000bb-1(a). In such cases, the burden on the government to justify intruding on religious liberty is a heavy one. That burden has not been and cannot be met here, warranting entry of injunctive relief in Plaintiffs’ favor – as would be the case for any and all Floridians similarly situated.
Indeed, the RFRA was enacted to ensure that government would retain precisely that heavy burden. The RFRA expressly provides that its purpose is:
(1) to restore 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) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
42 U.S.C. § 2000bb(b). Thus, the RFRA restored the constitutional standards governing the First Amendment prior to the decisions in Employment Div. v. Smith, 494 U.S. 872 (1990), which
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“substantially circumscribed” the “broad applicability of the compelling interest test” established by Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972). See also 42 U.S.C. § 2000bb(a); Lawson v. Singletary, 85 F.3d 502, 508 (11th Cir. 1996). The RFRA codified the compelling interest standard for laws of general application that substantially burden the free exercise of religion.
Each of the two cases cited in the RFRA examined state laws of general applicability. In Sherbert, the Supreme Court determined that a South Carolina law that disqualified a Seventhday Adventist who refused to work on Saturdays from unemployment benefits had to yield to her free exercise of her religion. 374 U.S. at 410. Even though this was an “incidental burden,” i.e., an unintended effect, the State was required to come forward with a compelling interest to justify it. Id. at 403. Similar treatment was accorded in Yoder, where the obligation under Wisconsin law was that children must have compulsory education through age 16. 406 U.S. at 207. The law was held to be an unconstitutional burden on Amish children, in contravention of “the basic religious tenets and practice of the Amish faith[,]” id. at 218, and therefore “beyond the power of the State to control, even under regulations of general applicability[,]” id. at 220.2
The RFRA’s general standards for determining whether there is a “substantial burden” on a person’s exercise of religion also come from Sherbert and Yoder. The “disqualification for benefits” in Sherbert was deemed a substantial burden on the plaintiff’s exercise of her freedom of religion because it forced her to choose between work and following the precepts of her religion:
2 See also United States v. Lee, 455 U.S. 252, 257 (1982) (noting that 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.”).
7

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The ruling forces her 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. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship. Sherbert, 374 U.S. at 404.3
Application of the compelling interest standard is warranted here. Thomas R. Beckwith
has attempted and wants to design a health insurance plan for Beckwith Electric that excludes
emergency contraception, abortifacient drugs, and other services that conflict with the teachings
of the Southern Baptist Convention. (Complaint, Doc. 1, at ¶ 23.) But he has been denied such a
plan because of the HHS Mandate. (Id. at ¶¶ 47-49.) The Mandate requires Beckwith Electric
and its owner either to abandon their commitment to Southern Baptist principles or face a yearly
fine of $2,000 per employee for failing to provide health insurance for early abortion-inducing drugs.4
That the HHS Mandate is a rule of general applicability does not shield it from the
RFRA’s strict scrutiny, including the heavy burdens imposed under the Act to justify intrusions
3 The Florida Supreme Court has comparably defined “substantial burden” in the context of the Florida Religious Freedom Restoration Act, Fla. Stat. §§ 761.01 et seq., (“FRFRA”) as “one that either compels the religious adherent to engage in conduct that his religion forbids . . . or forbids him to engage in conduct that his religion requires.” Warner v. City of Boca Raton, 887 So. 2d 1023, 1033 (Fla. 2004). But no Florida court has addressed the FRFRA’s applicability to individuals’ businesses. 4 Courts generally defer to the official statements of religious organizations regarding their doctrines and disciplines. See Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 113 (1952) (“whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them”) (internal quotes omitted). This is because “[r]eligion . . . must be left to the conviction and conscience” of the person. Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 638 (2007) (internal quotations omitted).
8

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on religious freedom. “[L]aws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S.C. § 2000bb(a)(2).
Courts in Florida and the Eleventh Circuit have not yet addressed the “substantial burden” issue in the context of the new federal healthcare law, but other federal courts have, with mixed results. Compare Monaghan v. Sebelius, 2013 WL 1014026 (E.D. Mich. Mar. 14, 2013) (substantial restriction found on an employer’s religious beliefs; the company was both secular and for-profit), and Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) (plaintiffs likely to show substantial burden on exercise of religious freedom; the company was both secular and forprofit), with Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dept. of Health and Human Servs., 2013 WL 1277419 (3d Cir. Feb. 8, 2013) (although a “close call,” plaintiffs not sufficiently likely to show substantial burden on religious liberty for purposes of preliminary injunction; merits undecided).
The Attorney General submits that the better reasoning of decisions such as Grote should guide the Court in this case. There, the Seventh Circuit stated:
[Plaintiffs] maintain that the legal duties imposed on them by the contraception mandate conflict with the religious duties required by their faith, and they cannot comply with both. . . . And the government’s minimalist characterization of the burden continues to obscure the substance of the religious-liberty violation asserted here . . . We conclude that the [plaintiffs] have established a reasonable likelihood of success on the merits of their RFRA claim. Id., 708 F.3d at 854-55. See also Korte v. Sebelius, 2012 WL 6757353, *3 (“[T]he Kortes would have to violate their religious beliefs to operate their company in compliance with [the contraception mandate].”). Here, Plaintiff Thomas R. Beckwith is a 93 percent voting shareholder and Chief Executive Officer of Beckwith Electric. (Complaint, Doc. 1, at ¶ 28.) As in Korte and Grote, the mandate unlawfully requires him to violate his beliefs in operating his company. The burden
9

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on the Plaintiffs’ religious beliefs in this case is obvious, established, and entitled to judicial deference. See Thomas v. Review Bd. of Ind. Employment Section Div., 450 U.S. 707, 716 (1981) (“[I]t is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith.”); see also Legatus v. Sebelius, 901 F. Supp. 2d 980, 991 (E.D. Mich. 2012).
Thus, the federal government bears a heavy burden in seeking to justify the Mandate’s intrusion on Plaintiffs’ religious freedom. That burden has not been and cannot be met here. III. THE FEDERAL GOVERNMENT LACKS A COMPELLING INTEREST TO APPLY
THE HHS MANDATE TO PLAINTIFFS. The federal government lacks a compelling interest for subjecting Plaintiffs to the HHS
Mandate, a result that is underscored by the patent availability of less restrictive alternatives for the government to achieve its goals without impinging on Plaintiffs’ freedom of religion.
In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424-31 (2006), the Supreme Court outlined the proper analytical framework for determining whether a compelling governmental interest exists that justifies a substantial burden on a person’s religious liberty. There, the Court was careful to note that this examination requires an inquiry into whether a compelling interest justifies applying the government mandate to the “particular claimant whose sincere exercise of religion is being substantially burdened.” Id. at 430-31.
The required focus on the “particular claimant” strengthens the instant Plaintiffs’ position that no compelling interest can be shown here, because it is indisputable that multiple categories of organizations and participants are excluded from the Mandate’s reach, including: (1) religious organizations (through a narrow exemption); (2) employers with fewer than 50 employees; and (3) more than 190 million health plan participants (through a grandfathering provision). See Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298 (D. Colo. 2012) (“this massive exemption
10

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completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs.”); see also Legatus, 901 F. Supp. 2d at 993 (“About 193 million health plans were in existence on March 23, 2010, and presumably qualified as grandfathered.”).
Any contention that the Mandate requires national uniformity cannot withstand strict scrutiny. Even excluding the grandfathering exemption on which the Newland court relied, the other exceptions overwhelmingly demonstrate the lack of compelling need for the Mandate to be applied here or in comparable circumstances.
The Mandate’s exception for “religious employers” that primarily inculcate the religious belief of a religious organization, primarily employ persons who share the tenets of that religious organization, and serve persons who share that religious faith, 45 C.F.R. § 147.130(a)(1)(A), (B), further underscores the lack of need for uniform applicability. Within the Southern Baptist Convention alone, this exception applies to more than 40,000 churches.5
Moreover, as regards the exemption for plans with fewer than 50 employees, the 2007 economic census (compiled every five years) indicates that there were more than 20 million paid employees at firms nationwide with fewer than 20 employees. See Table 2b “Employment Size of Employer and Nonemployer Firms, 2007.”6 That is, tens of millions of employees are not required to comply with this contraceptive mandate – not even counting the 190 million plan participants subject to the “grandfathering” provision.
5 Russ Rankin, “SBC Baptisms and Churches Increased in 2011, Membership Declined,” LifeWay Christian Resources of the Southern Baptist Convention. This article may be found at the LifeWay website: http://www.lifeway.com/Article/news-sbc-baptisms-churches-increasedin-2011-membership-declined (last visited May 30, 2013). 6 This United States Census Bureau document may be found at: http://www.census.gov/econ/smallbus.html (last visited on May 28, 2013).
11

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These exemptions defeat any claim by the federal government that the Mandate must be imposed on all other businesses, including Plaintiff Beckwith Electric Company. In O Centro, the Court examined whether the United States violated the RFRA by applying the federal Controlled Substances Act to a religious sect that used a plant containing a hallucinogen in its sacramental communion tea. 546 U.S. at 423. The compelling interest that the federal government put forward was “the uniform application of the Controlled Substances Act, such that no exception to the ban on use of the hallucinogen can be made to accommodate the sect’s sincere religious practice.” Id. (emphasis in original). The Court rejected this argument, concluding that the Act itself contemplated exceptions, since the Attorney General for the United States was authorized to grant “waive[rs]” where consistent with the public health and safety. Id. at 432.
The same reasoning applies here. The number of employees affected by exempting Plaintiffs and other similarly situated businesses would surely be small in comparison to the exemptions already provided to employers with fewer than 50 employees. The claim that there can be no exceptions to this rule – even where it burdens the free exercise of religion – must be rejected.
Equally important, there are other, less restrictive means which the federal government could have chosen to achieve its goals. As Plaintiffs suggest (Motion, Doc. 10, at page 17), the United States could have opted to provide tax credits to employers such as Beckwith Electric to encourage them to make contraceptive and other services available. The court in Newland delineated several such less-restrictive options, including “creation of a contraception insurance plan with free enrollment, direct compensation of contraception and sterilization providers, creation of a tax credit or deduction for contraceptive purchases, or imposition of a mandate on
12

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the contraception manufacturing industry to give its items away for free.” Id., 881 F. Supp. 2d at 1298. The availability of less-restrictive alternatives is underscored by the fact that tax credits are the mechanism by which the federal healthcare act seeks to provide an incentive for employers with fewer than 50 employees to obtain healthcare, as noted by the United States itself. See 42 U.S.C. §§ 18021, 18031(d)(2)(B)(i).
Additionally, the use of less restrictive alternatives to avoid infringement of First Amendment freedoms is plainly practical in this context. The court in Newland rejected the argument that reliance upon such alternatives would impose considerable costs and impractical burdens on the federal government, stating:
Defendants have failed to adduce facts establishing that government provision of contraception services will necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventive health care coverage to women. Once again, the current existence of analogous programs heavily weighs against such an argument. Newland, 881 F. Supp. 2d at 1299. At a bare minimum, any impracticality of pursuing such alternative means would be substantially outweighed by the encroachment on Plaintiffs’ religious liberty.
Conclusion For all of the reasons stated above, the Attorney General asks that the Court grant Plaintiffs’ request for a preliminary injunction.
Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL /s/ Blaine H. Winship Blaine H. Winship Special Counsel Florida Bar No. 0356913
13

Case 8:13-cv-00648-EAK-MAP Document 36 Filed 06/06/13 Page 14 of 14 PageID 870 Office of the Attorney General The Capitol, Suite PL-01 Tallahassee, Florida 32399-1050 Telephone: (850) 414-3300 Facsimile: (850) 488-4872 Blaine.Winship@myfloridalegal.com
CERTIFICATE OF SERVICE I hereby certify that on this 6th day of June, 2013, a copy of the foregoing was served on the counsel of record through the Court’s CM/ECF Notice of Electronic Filing system.
/s/ Blaine H. Winship Blaine H. Winship
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 Case 8:13-cv-00648-EAK-MAP Document 39 Filed 06/25/13 Page 1 of 37 PageID 874

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

BECKWITH ELECTRIC CO., INC., and THOMAS BECKWITH,
Plaintiffs,
vs.

CASE NO. 8:13-cv-0648-T-17MAP

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACK LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT
OF THE TREASURY
Defendants.
/
ORDER ON PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs, Beckwith Electric Co., Inc. ("Beckwith Electric"), and Thomas R. Beckwith
("Beckwith"), seek a preliminary injunction to enjoin the enforcement of a regulatory mandate
that compels health care coverage that would include provision of any FDA-defined emergency
contraceptive and other named alternatives. As grounds for relief, plaintiffs rely on the Religious
Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, etseq., and the Free Exercise Clause
of the First Amendment. Having considered the positions of the parties and the amici curiae,
and having heard oral argument on June 17, 2013, the Court finds that plaintiffs satisfied their

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burden at this stage and preliminary injunctive relief is appropriate. For the reasons stated
below, the motion is GRANTED.
BACKGROUND
Beckwith maintains that his ancestors arrived on the shores of America in 1626 to escape
religious persecution in England. In 1967, Beckwith's mother and father started a family business in their garage in Illinois with financing provided by Beckwith's grandfather. From that beginning, the small, family-run start-up grew into what is now Beckwith Electric, a Florida corporationthat employees 168 full-time employees to engineer, manufacture, and market micro-processor-based technology for the implementation and utilization of generators, transformers, and power lines. Today, Beckwith is the Chief Executive Officer and 92% shareholder of Beckwith Electric, which, although a secular, for-profit corporation, is operated according to and consistent with Beckwith's personal religious beliefs.
In both his personal and business endeavors, Beckwith "strive[s] to follow the teachings and values of the Southern Baptist" faith. (Dkt. 10). Beckwith believes that "a company managed under the living God's direction and by God's principles cannot engage in or promote activities that are contrary to such direction, principles, or moral compass." Id. at f 13. One such belief "prohibits] [him] from providing, participating in, paying for, training others to engage in, or otherwise supporting emergency contraception, abortion, abortifacients, and any drugs, devices, and services that are capable of killing innocent human life." Id. at ^f 11-12. Consequently, according to Beckwith's religious beliefs, he asserts that he cannot direct the company, of which he is the chief executive and principal shareholder, to allocate its resources to providing emergency contraceptives or abortion-causing drugs or devices. Id.

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Beckwith Electric further inculcatesthese religious beliefs in its corporate environment.
Beckwith personally arranges for corporate chaplains to visit Beckwith Electric on a weekly basis to assist employees with "difficult issues of bereavement, marriage, children, finances, addictions, eldercare, and othertypes of crises." Id. at \ 17. Beckwith Electric also donates to various charities, both secular and religious, including New Life Solutions' Family Ministries, which is a"Christ-centered ministry offeringhope, help, andhealing for women, teens and
families by promoting healthy lifestyle choices and relationships." Id. at %20-22. As a secular, for-profit corporation employing 168 full-time employees, Beckwith
Electric is required to provide insurance coverage to his employees pursuant to regulations promulgated pursuant to the Patient Protection and Affordable Care Act ("ACA"), Pub. L. 111148,124 Stat. 119 (2010), andthe Health Care and Education Act, Pub. L. 111-152,124 Stat. 1029. Through its insurance carrier, Humana, Beckwith provides insurance coverage to its employees. Beckwith was under the mistaken beliefthat the Humana group policy provided to Beckwith Electric's employees did not providecoverage for FDA-defined emergency contraceptives. Id. atffi[ 23-24. As it turns out, a Humana representative incorrectly informed
Beckwith that his plan did not provide these services when in fact itmay.1 Id. Beckwith isnow
faced with the decision to either provide an insurance planthat meets the "minimum essential coverage" requirements, namely the FDA-defined emergency contraceptives, pursuant to the mandate, or face significant fines for noncompliance. Because Beckwith Electric's plan year anniversary is June 1,2013, the date by which compliance was mandated has since come and
gone. Id. at at ffi[ 47-49.
1It is not entirely clearwhether the Humana policy covers some (but not all) of the FDA-defined emergency contraceptives to which plaintiffs object. See (Dkt. 38). That will be borne out by a more complete record as the case develops. What is clear is that as of June 19,2013, the group policy does not fully comply with the contraceptive mandate. See id.

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As a result, plaintiffs instituted this action on March 12,2013. (Dkt. 1). By mandating insurance coverage for FDA-approved emergency contraceptives in contravention of their sincerely held religious beliefs, plaintiffs allege the defendants are violating: their First Amendment free exercise rights (Counts I-III), the Establishment Clause of the First Amendment (Count IV), the First Amendment freedom of speech (Count V), their First Amendment right of expressive association (Count VI), their religious freedom rights under the RFRA (Count VIII), and the Administrative Procedure Act ("APA") (Counts IX-XII). Plaintiffs ask this Court to declare the mandate unconstitutional, to preliminarily and permanently enjoin its enforcement against plaintiffs, and to award costs, including attorneys' fees, for bringing this action.
Currently before the Court is plaintiffs' motion for preliminary injunction filed on May 13,2013, which is the same date plaintiffs effected service of process on the named defendants.
(Dkts. 9,10).2 The government, of course, opposes plaintiffs' request for injunctive relief. (Dkt.
24). In addition to the positions presentedby the parties, the Court has had the benefit of
several amici curiae? With leave of this Court, the State of Florida, through the Office of the
Attorney General, filed a brief supporting plaintiffs' request for injunctive relief. (Dkt. 36). Also supporting Plaintiffs' position, a collective amici brief was filed by the Association of Gospel Rescue Missions, Prison Fellowship Ministries, National Association of Evangelicals,
2 Given the June 1,2013, "trigger date" for the new insurance policy, plaintiffs filed an Emergency Motion for Expedited Consideration of Preliminary Injunction Motion and/or Motion to Withdraw Oral Argument. (Dkt. 25). The Court denied that request on the grounds that plaintiff should have brought the June 1, 2013 deadline to the Court's attention earlier than May 28,2013, four days before the deadline. See (Dkt. 31). The plaintiffs notified the Court, after the hearing, that Beckwith Electric does not have an insurance policy that complies with the contraceptive mandate. (Dkt. 38) ("Plaintiffs' current insurance policy expressly excludes ... Plan B, Ella, or any alternative ... and copper IUDs."). 3The Court thanks the amici for their helpful and informative submissions.
4

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Association of Christian Schools International, Ethics & Religious Liberty Commission of the Southern Baptist Convention, Institutional Religious Freedom Alliance, the CI2 Group, and Christian Legal Society (collectively, "Religious Supporters"). (Dkt. 33). The American Civil Liberties Union and the American Civil Liberties Union of Florida (collectively, "ACLU") filed a collective amici brief in opposition to plaintiffs' request for injunctive relief. (Dkt. 23).
ANALYSIS
Religious tolerance serves as an important foundational tenet in the governance of any society. A commonly misunderstood term, to "tolerate" does not mean with which to agree; it does not mean to understand; and, it most certainly does not mean to adopt a belief as one's own. By definition, to tolerate means "to recognize and respect (others' beliefs, practices, etc.) without sharing them." Webster's New World Dictionary ofthe American Language (2d College Ed. 1980). The notion of religious tolerance has echoed the halls of our country's history for centuries. See Patrick Henry, Religious Tolerance, Stokes 1:311-12 (1766) ("A general toleration of Religion appears to me the best means of peopling our country, and enabling our people to those necessarys [sic] among themselves, the purchase of which from abroad has so nearly ruined a colony, enjoying, from nature and time, the means of becoming the most prosperous on the continent."); Samuel Adams, The Rights ofthe Colonists, Writings 2:352-53 (Nov. 20,1772) ("As neither reason requires, nor religeon [sic] permits the contrary, every Man living in or out of a state of civil society, has a right peaceably and quietly to worship God according to the dictates of his conscience ... [i]n regard to religeon [sic], mutual tolleration [sic] in the different professions thereof, is what all good and candid minds in all ages have ever practiced ..."). This case tests whether the challenged federal laws are "true to the spirit of practical accommodation that has made the United States a Nation of unparalleled pluralism and

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religious tolerance." See Salazar v. Buono, 559U.S. 700,130 S. Ct. 1803,1821 (2010) (Alito,
J., concurring in part).
The challenged statutory and regulatory provisions deal with the federally mandated provision of insurance coverage for, "with respect to women, such additional preventative care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration." 42 U.S.C. § 300gg-13(a)(4). The Department of Health and Human Services ("HHS") tasked the Institute of Medicine ("IOM") to determine the appropriate guidelines for the provision of "preventative care" for
women. See Institute of Medicine, Clinical Preventative Services for Women: Closing the Gaps
2 (2011). As a result, targeted insurance plans must now include all FDA-approved emergency
contraceptives. There are exemptions to the ACA and the HHS mandate. First, any plan that is
"grandfathered" need not comply. Among other things, in order to qualify for "grandfathered" status, a planmust not have made any changes since March 23,2010. Second, there is an exemption for non-profit companies that qualify as "religious employers." In response to concerns from various religious organizationsthe HHS proposed amendments to the regulations regarding the contraceptive mandate, andthe advanced notice to the proposed rules states that the religious exemption would be broadened and there would be a "safe-harbor" for certainnon profit employers with religious exemptions. This exemption requires that employers have the following characteristics: (1) the inculcation of religious values is the purpose of the organization; (2) the organization primarilyemploys individuals who sharethe religious tenets of the organization; (3) the organization serves persons who share the religious tenets of the

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organization; and (4) the organization is a nonprofit organization. See 45 C.F.R. §
147.130(a)(l)(iv)(B).
Although there are several exemptions to the ACA and the HHS mandate, these plaintiffs do not qualify for any of them. The issue here is whether a non-exempt, secular, for-profit corporation has to comply with the ACA and contraceptive mandate in the face of an express religious belief that opposes the provision of contraceptive coverage.
The answer is entirely dependent on whether plaintiffs have a cognizable claim under the
Religious Freedom ofRestoration Act of 1993 ("RFRA").4 In response to Employment Div.,
Dept. ofHuman Resources ofOregon v. Smith, 494 U.S. 872 (1990), the case in whichthe Supreme Court upheld a generally applicable law that barred the receipt of unemployment compensation if a person was terminated for drug use (at issuewas the sacramental use of peyote), Congress enacted the RFRA. According to the congressional findings enumerated in RFRA, "the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment" and the Supreme Court in Smith "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by
laws neutral toward religion." 42 U.S.C. 2000bb(a)(l). "Congress recognized that 'laws neutral toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,' and legislated 'the compelling interest test' as the means for the courts to 'strike sensible balances between religious liberty and competing prior governmental interests.'" Gonzales v. O Centro EspiritaBeneficente Uniao do Vegetal, 546 U.S. 418 (2006). Congress, in effect, adopted the "compelling interest test" as set forth in Sherbert v. Verner, 374 U.S. 398
4Plaintiffs do not present any argument to advance their claims under the First Amendment and
the APA beyond those covered by the RFRA. It is of no consequence, however, because the remaining claims (if even cognizable) present a much more exacting standard than that under the
RFRA.

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(1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). Id. at 431. Although the Supreme Court struck downthe RFRA as to state laws,see City ofBoerne v. Flores, 521 U.S. 507, 536 (1997), it at leastimplicitly recognized its constitutionality withrespect to federal laws in O Centro.
Plaintiffs seek now seek preliminary injunctive relief under the RFRA and the First Amendment. The Court must, therefore, determine whether the plaintiffs can satisfy the requisite elements for a preliminary injunction: (1) likelihood of success on the merits, (2) irreparable harm, (3) the balance of the hardships, and (4) the public interest. Johnson &
Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242,1246-47 (11th Cir. 2002).
Beforereachingthe merits, the Court must determine if there is a cognizable case and controversy underArticle III in order to establish the standing of each plaintiffbefore this Court. Thomas v. Howze, 348 Fed. App'x 474, 476 (11th Cir. 2009).
I. Plaintiffs have standing to bring the claim. As a threshold matter, the Court has to determine whether a secular, for-profit
corporationhas standing to challenge the mandate to provide FDA-defined emergency contraceptives. "The three prerequisites for standingare that: (1) the plaintiff ha[s] suffered an 'injury in fact' - an invasion of a judicially cognizable interest, which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there be a causal connection between the injury and the conduct complained of- the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) it be likely, not merely speculative, that the injury will be redressed by a favorable decision." 31 Foster Children v. Bush, 329 F.3d 1255, 1263 (11th Cir. 2003) (quoting Bennett v. Spear, 520 U.S. 154,162 (1997)). Neither the Supreme Court nor the Eleventh Circuit has had occasion to decide whether a secular, for-profit

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corporation has standing to assert a claim for free exercise of religion under eitherthe First
Amendment or the RFRA.
Although several district and circuit courts outside of the Eleventh Circuit have
considered the issue, they have not taken a consistent analytical approach. First, some courts
simply avoid the standing issue altogether.5 Second, other courts hold (expressly or impliedly)
thata corporate plaintiffhas standing to challenge the contraceptive mandate but further hold
that secular, for-profit corporations do not enjoy the rightto exercise religion under either the
First Amendment or the RFRA.6 In other words, acorporation has a sufficient injury to establish
constitutional standing even though that same corporation does not have the right to exercise
religionas a matter of substance. As discussed later, that approach, which the government seems
to be taking here, fails to appreciate the extent of the plaintiffs' alleged injury. Third, there are
courts that hold that corporations have standing to assert the shareholder's free exercise rights
under a pass-through instrumentality theory.7 That approach focuses on the free exercise rights
5See AnnexMed, Inc. v. Sebelius, 2013 WL 1276025 (8th Cir. 2013) (granting injunction pending appeal without discussing standing); Autocam Corp. v. Sebelius, No. 12-2673 (6th Cir. 2012) (denying injunction pending appeal without discussing standing). 6See Conestoga Wood Specialties Corp. v. Sebelius, _F. Supp. 2d_, 2013 WL 140110, at *7 (E.D. Pa. Jan. 11,2013) (holdingthat a corporation has standing, but "that the nature, history and purpose of the Free Exercise Clause demonstrate that it is one of the 'purely personal' rights referred to in Bellotti [435 U.S. 765, 778 (1978)], andas such, is unavailable to a secular, forprofit corporation."); see generally Grote v. Sebelius, 708 F.3d 850, 856 (7th Cir. 2013) (Rovner, J., dissenting) ("I begin my analysis with a threshold point: on the record before us, it is only the Grotes, and not the corporate entities, which can claim to have the right to exercise religious
freedoms.").
"See Geneva College v. Sebelius, 2013 WL 838238, at *6 (W.D. Pa. March 6, 2013) ("At this stage, the court finds that SHLC pleaded sufficient facts for the court to find that it has standing to assert its owners' RFRA and First Amendment claims."); Monaghan v. Sebelius, F. Supp. 2d _, 2013 WL 1014026, at *6 (E.D. Mich. Mar. 14, 2013) (finding that the corporate entity is the instrument through and by which the individual owner expresses his religious beliefs);

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ofthe individual without any consideration of whether the corporation has any rights independent of the individual to exercise religion. Finally, another court, citing the Supreme Court's recent decision in Citizens United, held that an individual's decision to operate its business using a particular corporate form is simply "not dispositive," without elaborating any
further.8 By its citation to Citizens United, it is reasonable to presume that the court found no
reason to distinguish between a corporation's right to exercise religion andthe corporation's rightto engage in political speech, as both are contained in the First Amendment. However, no court hasexpressly held that a secular, for-profit corporation can assert its own right to exercise
religion.
Ostensibly retreating from earlier cases in whichthe government challenged the standing
ofthe corporate plaintiff,9 the government in this case concedes that the corporate plaintiffhas standing but argues that the individual plaintiff does not.10 Conceding that the corporate plaintiff
has standing, although seemingly innocuous, presents a curious inconsistency. That is, to say thata corporation has standing to assert a claim challenging the contraceptive mandate, on the
Legatus v. Sebelius, 901 F. Supp. 2d 980, 988 (E.D. Mich. 2012) (same); Tyndale House Pub., Inc. v. Sebelius, 904 F. Supp. 2d 106,114-20 (D.D.C. Nov. 16,2012) (same).
sSee Korte v. Sebelius, 2012 WL 6757353, at *3 (7th Cir. Dec. 28,2012).
9"The parties initially dispute whetherTyndale has standing to raise RFRA and free exercise claims. According to the defendants, [the corporation] is unable to assert such claims on its own behalfbecause it is a 'for-profit corporation [that] does not exercise religion' within the meaning of the RFRA and the First Amendment." Tyndale House, 904 F. Supp. 2d at 114. 10 During the hearing on Plaintiffs' Motion for Preliminary Injunction, held on June 17,2013, the government conceded that Beckwith Electrichas standingto bring this claim, but maintained that Mr. Beckwith did not. During oral argument in Grote v. Sebelius, before a panel ofjudges in the Seventh Circuit, the government's lawyer argued that"the individual plaintiffs lack standing... but the corporate plaintiff has standing." See Audio File of Oral Argument, May 22, 2013, available at http://media.ca7.uscourts.gov/sound/external/lj.13-1077.13-1077_05_22_ 2013.mp3.
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one hand, and then, on the otherhand, argue later that it is not "substantially burdened" by the contraceptive mandate because it does nothave theright to exercise religion seems to not fully appreciate an important component ofthe pending claims—that compliance with the contraceptive mandate is violative of its religious beliefs. See Conestoga, 2013 WL 140110, at *7; Grote, 708 F.3d at 856 (Rovner, J., dissenting). Not convinced that the standing analysis is wholly distinct from the question of whether a corporate plaintiff can exercise religion (either directly or indirectly through its majority shareholder), the Court must examine the constitutional and prudential limitations, if any, on this Court's subject matter jurisdiction. See Lujan v. Defenders ofWildlife, 504U.S. 555, 560 (1992); ACLU ofFlorida, Inc. v. Miami-Dade County School Board, 557 F.3d 1177,1190 (11th Cir. 2009) ("Because standing is a necessary component of ourjurisdiction to hear cases and controversies under Article III ofthe Constitution, we must address it first.") (internal citations omitted).
It is prudent to beginby defining the injury. One couldcharacterize the injury to the corporate plaintiffas simply being subject to the regulations. See, e.g., Conestoga, 2013 WL 140110, at *5 (holding thatthe plaintiffs had Article III standing because the corporate plaintiff "would be subject to the regulations eventually"). "When the suit is one challenging the legality of government action or inaction ... [and] the plaintiffis himself an objectofthe action ... there is ordinarily little questionthat the action or inaction has caused him injury, andthat a judgment preventing orrequiring the action will redress it." Lujan, 504 U.S. at 561-62. Of course, Beckwith Electric is subject to the contraceptive mandate, and there is little doubtthat it will be subject to substantial financial penalties if it refuses to supply insurance coverage consistent with the regulatory mandate. But that does not address the allegedinjuries in this case.
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As alleged, "the [m]andate forces employers and individuals to violatetheir religious beliefsbecause it requires employers and individuals to pay for and provide insurancefrom insurance issuers which fund and directly provide for drugs, devices, and services which violate their deeply held religious beliefs." (Dkt. 1,1(9). More specifically,the "[m]andate violates Plaintiffs' rights to the free exercise of religion and the freedom of speech under the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act." (Dkt. 1,112). By their own allegations, the plaintiffs are seeking redress from the contraceptive mandate's purported violation of their right to exercise religion, as opposed to merely being subject to eventual fines for non-compliance. Beyond the constitutional limitations of standing, the court's own prudential constraints typically require that a party assert only a violation of its own rights even when an injury-in-fact is demonstrated. See Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 392 (1988). Beckwith Electric can, therefore, only have standing to bring this suit if, as a secular, for-profit corporation, it either has
its own or can assert its individual owner's free exercise rights under the RFRA and the First
Amendment. Each will be discussed in turn.
A. Corporations have the right to exercise religion under the First Amendment and
the RFRA.
Beginning with its statutory text, a stated purpose of the RFRA is "to provide a claim or defense to persons whose religious exercise is substantially burdened by the government." 42 U.S.C. § 2000bb(b)(2) (emphasis added). Often times, the relevant statutory text will unambiguously apply to a corporation, either by direct reference or by defining the term "person" to include corporations and the like. The RFRA does neither. Plaintiffs suggest the Court turn to the Dictionary Act in Title 1 of the United States Code, which defines "person" as including "corporations, companies, associations, firms, partnerships, societies, and joint stock
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companies, as well as individuals." 1U.S.C. § 1. Absent some indication that Congress meant to exclude corporations, it is generally fair to assume that corporations are considered "persons" under most statutory schemes. See FCC. v. AT&T, Inc., __ U.S. _, 131 S. Ct. 1177,1183 (2011) ("We have no doubt that 'person,' in a legal setting, often refersto artificial entities.");
see, e.g., Ruppel v. CBS Corp., 701 F.3d 1176,1181 (7th Cir. 2012).11 The statute itself purports
to impose a heightened burdenon the free exercise claims of"persons." While the RFRA does not define the term "person," it is evident that Congress responded to what it perceived as an incorrect decision in Smith. See 42 U.S.C. §§ 2000bb(a)(l) (referring to the recognition of free exerciseby the Framers of the Constitution); (b)(1) (finding that the "compelling interesttest in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing priorgovernmental interests"). Recognizing that Congress only has the power to enforce—but not redefine—constitutional principles, see Boerne, 521 U.S. at 519, it seems likely that Congress used the term in the statute as being co-extensive with the term
"person" as used inthe Constitution.12
The Supreme Court has interpreted the Constitution to provide corporations with a wide array of what may often be considered individual rights protections. The Supreme Court has recognized, for instance, that corporations are persons under the First Amendment for various forms of speech. See, e.g., Citizens United v. Federal Election Comm'n, 558 U.S. 310, 342
11 In FCC. v. AT&T, the Supreme Court held that the term "personal privacy," as used in the Freedom of Information Act, did not extend to corporations because it made little sense in the context of a statutory scheme that served to protect an individual's privacy interest in certain records. Id. at 1185-86. The Supreme Court was not defining the term "person," and the statutory scheme constructed in the FOIA did "not call upon [them] to pass on the scope of a corporation's 'privacy' interests as a matter of constitutional or common law." Id. at 1184. 12 It is appropriate to apply First Amendment jurisprudence to claims brought pursuant to the RFRA. See Tyndale House, 904 F. Supp. 2d at n. 9.
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(2010) (holdingthat corporations have the right to engage in political speech by spendingmoney to support candidates for public office); Pittsburgh Press Co. v. Pittsburg Comm 'n on Human Rel, 413 U.S. 376 (1973) (holding that corporations have the right to engage in commercial advertising). Corporations have also been afforded constitutional guarantees outside of the First Amendment. See, e.g., United States v. Martin Linen Supply Co., 430 U.S. 564, 575-76 (1977) (holding that corporations are entitled to double jeopardy protection); G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977) (citing Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931)) (holding that corporations have Fourth Amendment rights); Kentucky Fin. Corp. v. Paramount Auto Exch. Corp., 262 U.S. 544, 550 (1923) ("That a corporation is a 'person' within the meaning of the due process and equal protectionclauses of the Fourteenth Amendment... is equally well settled."). In contrast, the Supreme Court has identified certain"purely personal" guarantees for which the Constitution does not provide protection for corporations. See, e.g., Wilson v. United States, 221 U.S. 361 (1911) (holding that corporations are not afforded the privilege against self-incrimination); California Bankers Ass 'n v. Shultz, 416 U.S. 21, 66 (1974) (recognizing that "corporations can claim no equality with individuals in the enjoyment of the right to privacy"). These cases drive home the point that corporations are not always entitled to the protections of the Constitution—itdepends on the rights at issue. Because the Supreme Court has never resolved "the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment^]" see First NationalBank ofBoston v. Bellotti, 435 U.S. 765, 779 at n. 14 (1978), the question here is whether a secular, for-profit corporation enjoys the right, independent of the individuals who operate and own it, to freely
exercise religion under the First Amendment.
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"Whether or not a particular guarantee is 'purely personal' or is unavailable to corporations for someother reasons depends on the nature, history, and purpose ofthe particular constitutional provision." Bellotti, 435 U.S. at n. 14. Starting with its text, the First Amendment
reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, orabridging the freedom of speech, orof the press; orthe right of the people peaceably to assemble, and to petition the Government for a redress of
grievances.
U.S. Const, amend. I. (emphasis added). The Supreme Court has already determined that the text of the First Amendment does not provide any reason to distinguish between a "natural person" and a corporation for political speech purposes. See Citizens United, 558 U.S. at 365 ("[T]he Government may not suppress political speech on the basis ofthe speaker's corporate identity."). As Justice Scalia pointed out in his concurrence, "[i]ts text offers no foothold for excluding any categoryof speaker, from single individuals to partnerships of individuals,to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to supportany exclusion." Id. at 393 (Scalia, J., Alito, J., concurring, Thomas, J., concurring in part). Likewise, there is nothing to suggest that the right to exercise religion, which immediately precedes the rightto free speech in the First Amendment, was intended to treat any form ofthe "corporate personhood," including corporations, sole proprietorships and partnerships, any differently than it treats individuals. To write into the text of the First Amendment such a distinction, especially when
there seems to be no evidence that such a distinction mattered to the Framers, would seem to be
in conflict with the Supreme Court's holding in Citizens United. While the issue is a close one, the Court concludes that a corporationis a "person" under the First Amendment and the RFRA.
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B. Closely-held corporations, such as Beckwith Electric, can assert the free exercise rights of their owners under the RFRA and the First Amendment.
Close calls can go either way. In this case, even if the earlier question come outs differently the result is the samebecause Beckwith Electric has standing to assertthe free exercise rights of Beckwith. Several courts addressing this precise issue have already determined that a corporation has standing to assertthe free exercise rights of its owners. See Geneva College, 2013 WL 838238, at *6; Monaghan, 2013 WL 1014026, at *6; Legatus, 901 F. Supp. 2d at 988; Tyndale House, 904F. Supp. 2d at 114-20. These cases rely on twoNinth Circuit decisions that held that the secular, for-profit corporationwas "merely the instrument throughand by which [the plaintiffs] express[ed] their religious beliefs." See, e.g., Stormans, Inc. v. Selecky, 586 F.3d 1109,1120 (9th Cir. 2009); EEOC v. Townley, Eng'g &Mfg. Co., 859 F.2d 610, 620 (9th Cir. 1988). For the reasons that follow, the Court finds this line of reasoning quite persuasive. See Tony and Susan Alamo Found, v. Sec. ofLabor, 471 U.S. 290, 303 at n. 26 (1985) (finding that a non-profit foundation had standing to bring free exercise claim on behalf of it associates, "who are members of the religious organization as well as employees under the
Act").
A brief foray into the nature, history, and purpose of the Free Exercise Clause and the role of corporations duringthe founding era is instructive on the matter. See generally Bellotti, 435 U.S. at n. 14; but see Citizens United, 558 U.S. at 386 (Scalia, J., Alito, J., concurring, Thomas, J., concurring in part) (criticizing the dissent's approach to "embark[] on a detailed explorationof the Framer's views about the 'role of corporations in society"). "Of course the
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Framers' personal affectionor disaffection for corporations is relevant only insofar as it canbe thought to be reflected in the understood meaning of the text they enacted—not... as a
freestanding substitute for that text." Id.
The purpose of the Free Exercise Clause is "to secure religious liberty in the individual by prohibiting any invasionsthereof by civil authority." Sch. Dist. OfAbington Twp. v. Schempp, 374U.S. 203,223 (1963). The freedom to exercise religion, along with the other freedoms encompassed by the First Amendment, has consistently beenviewed as a"fundamental component^ ofthe liberty safeguarded by the DueProcess Clause." Bellotti, 435 U.S. 765 (1978) (citing Gitlow v. New York, 268U.S. 652, 666 (1925); see generally Charles Warren, The New "Liberty" Under the Fourteenth Amendment, 39 Harv. L. Rev. 431 (1926). Even prior to the Constitutional Convention, and certainly before the Bill of Rights was proposedand ratified, the freedom to exercise religion was understood as a liberty of conscience; in other words, the people enjoyed the inalienable right to engage in religious worship "according to the dictates of their own consciences." Constitution ofNew Hampshire, Pt. 1, Art. IV (1784); Constitution of Massachusetts, Art. II (1780); Constitution of South Carolina, Art. XXXVIII (1778); Constitution ofNew York, Art. XXXVIII (1777); Constitution of Vermont, Ch. 1, Sec. 3 (1777); Constitution ofNorth Carolina, Declaration of Rights, Art. XIX (1776); Constitution ofVirginia, Declaration of Rights, Sec. 16(1776); Constitution of Delaware, Declaration of Rightsand Fundamental Rules, Sec. 2 (1776); Constitution of Maryland, Declaration of Rights, Art. XXXIII (1776); Constitution ofNew Jersey, Art. XVIII (1776); Constitution of Pennsylvania,
Declaration of Rights, Art. II (1776).
It, therefore, cannot be reasonably disputed, if at all, that the purpose of the right to exercise religion was to secure to all individuals the liberty of conscience without government
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interference. What happens, then, when the individual chooses to participate in free enterprise? Does this liberty of conscience travel with an individualin his or her commercial endeavors as a shareholder of a corporation? This Court believes it does.
However, the government argues, and other federal judges addressing this issue have concluded, that an individual voluntarily relinquishes this liberty when he or she elects to engage in free enterprise underthe veil of certain corporate forms. See Grote, 708 F.3d at 856 (Rovner,
J., dissenting);13 see also Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278,1291
(W.D. Okla. 2012). With respectto closely-held corporations, Judge Rovner, in her dissent, warns of what is perceived as a "natural inclination for the owners of [closely held] companiesto elide the distinction between themselves and the companies they own." Grote, 708 F.3d at 857. The basic purpose of incorporation, it hasbeenheld, is to '"create a legal entity, with legal rights, obligations, powers, and privileges different from those ofthe natural individuals who created it, who own it, or whom it employs.'" Id. (quoting Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158,163 (2001)). "[Corporations] do not pray, worship, observe sacraments or take other religiously-motivatedactions separate and apart from the intention and direction of their individual actors." Hobby Lobby, 870 F. Supp. 2d at 1291. This principled demarcation of obligations and benefits seems to hinge in part on the benefit of limited liability gained by the individual in exchange for the relinquishment ofthe right to exercise religion. Judge Rovner
13 It should be noted that Judge Rovner addressed this argument in terms of whether the
contraceptive mandate placed a substantial burdenon the individual plaintiff in that suit, as opposed to whether the corporate plaintiffhad standing. In otherwords, the issue was framed as whether an individual can be burdened by a regulationthat imposes financial penalties on a corporation it owns. Again, that mischaracterizes the injury. The fines imposed on the company are not the true harm here; the fines are simply the means by which the government coerces the individual to comply with the applicable law. The fundamental question remains the same—as between an individual and a corporation he owns, which of the two (or both) suffers the harm of
a regulation that burdens religious freedom.
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ultimatelyconcludes, based on that reasoning, that it is the individual—notthe corporation— who enjoys the right to exercise religious freedom. Grote, 708 F.3d at 856-57. This argument fails to take into account the entire historical context of corporations during the founding era.
First, the Court will address why shareholders' enjoyment of limited liability is simply inapposite to whether that shareholder can exercise religion while engaging in free enterprise. To be sure, even late into the nineteenth century, limited liability was still not even uniformly accepted by all the states as a guaranteed attribute of the corporate form. See Herbert Hovenkamp, The Classical Corporation inAmerican Legal Thought, 16 Geo. L.J. 1593,1651 (June 1988) ("During the first third of the nineteenth century, American states experienced a general legislative and judicial reaction against limited liability."); see also Dante Figueroa, Comparative Aspects ofPiercing the Corporate Veil in the United States and Latin America, 50 Duq. L. Rev. 683, 703 (Fall 2012) ("Limited liability statutes were not initially enacted across the United States, because many jurisdictions imposed shareholder liability in a number of areas of law for various causes of action."). Indeed, corporations—as opposed to joint ventures, sole proprietorships, and partnerships—were an attractive vehicle for commerce because of the elements of centralized management, perpetual life, and the ability to hold property in the corporate name. Stephen B. Presser, Piercing the Corporate Veil § 1:3 (2013 ed.). True as it is that limited liability is oft regarded as the most important principle in modern corporate law, it cannot be said that such was the mindset at the time the Bill of Rights grafted into the constitution the inalienable right to exercise religion without interference by the government. It is not sound, therefore, to rely on the premise that individuals bartered for the privilege of limited personal liability in exchange for the relinquishment of their free exercise rights when engaging
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in commerce underthe corporate form. That is so because it cannotbe saidthat there even existed a guarantee of limited liability at that time.
Of coursethere is a meaningful distinction between shareholder and corporation, and
over time the contours of the distinction have changed.14 Chief Justice John Marshall, in what is
often considered the primordial veil piercing case in the United States, writing for a unanimous Court, espoused the original "associational view" of corporations as"invisible, intangible, and artificial beings ... [that] may be considered as having corporeal qualities[,]" such that the corporation's citizenship (for federal jurisdictional purposes) wasthe citizenship of its shareholders rather than the state of incorporation or its principal place of business." See United States v. Deveaux, 9 U.S. 61, 86, 89 (1809). In Louisville, C. & C.R. Co. v. Letson, the Taney Court overruled Deveaux and adopted a "fictional" view of corporations, defining the corporate entity as an"artificial person" that inhabits the state of incorporation for jurisdictional purposes.
43 U.S. 497, 558 (1844).
That the corporeal and incorporeal dichotomy of the corporate personhood has transformed over centuries of Supreme Courtjurisprudence is revealing, but not dispositive. It is true thata corporation is a fictional entity, separate and apart from its association of individuals, and it enjoys certain privileges benefitting both the association as a whole andthe individuals alike. But the individuals are the real parties that make up the association and these individuals bring with them certain rights that, unless incompatible with the corporate form, should not be relinquished. It cannot be said here thatthe exercise of religion by an individual in association
1ASee Hovenkamp, supra, at 1597 (explaining the transition of the jurisprudential concept of the corporation from the "associational" view of the Marshall Court, to the "fictional" view ofthe
Taney Court, to finally the "personal" or "entity" view that developed near the end ofthe 19th
century).
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with other individuals is incompatible with any of its corporate privileges, whether we speakof the privilege of a shareholder to enjoy limited liability or the privilege of a corporation to exist in perpetuity. Put simply, an individual's rightto freely exercise religion includes the rightto exercise religion in association with others under the corporate umbrella. See generally Citizens United, 558 U.S. at 392 ("But the individual's right to speak includes the right to speak in association with other individual persons'") (emphasis in original).
In fact, history teaches us that religious tolerance was intended to, and in fact did, inspire commercial prosperity in the early colonization of our nation. See Patrick Henry, Religious Tolerance, Stokes 1:311-12 (1766). Alexander Hamilton proclaimed that "[m]anufacturers, who (listening to the powerful invitations of... what is far more precious than mere religious toleration, a perfect equality of religious privileges) would probably flock from Europe to the [UJnited [S]tates to pursue their own trades or professions ...."). Report on Manufactures, Papers 10:253-54 (Dec. 5,1791). Hamilton was eventually proven correct. "Indeed, it was 'historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause.'" Church ofthe Lukumi BabaluAye, Inc. v. City ofHialeah, 508 U.S. 520, 532 (quoting Bowen v. Roy, 416 U.S. 693, 703 (1986) (Burger, C.J.)).
Although it cannot be stated with any degree of certainty that the prosperity of our nation is attributable to the religious freedom Americans enjoy, history certainly cannot be ignored. To hold today that the one's unalienable "liberty of conscience" rests entirely on the form in which that individual elects to participate in free enterprise is counter to this Court's understanding of, and appreciation for, the right to the free exercise of religion guaranteed by the Constitution. But see UnitedStates v. Lee, 455 U.S. 252, 261 (1982). The historical backdrop of the First Amendment does not support the conclusion that an individual who engages in free enterprise
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utilizinga certain corporate form sheds the right to exercise his religion in his commercial
endeavors.
The intersection of corporate form with individual rights is even more central when dealing with a closely held corporation, such as the case here. It would truly be form over substance to say there is a meaningful distinction between Beckwith Electric and Beckwith when it comes to religion. The government disagrees and argues that the regulations impose no obligation on Beckwith personally; rather, the obligation is on Beckwith Electric (a legally distinct entity) to use its corporate funds to purchase the group policy and those same corporate funds to pay for the fines in the event Beckwith Electric fails to comply with the contraceptive mandate. The flaw in the government's argument is that it focuses on the financial burden
instead of the religious burden on Beckwith personally.15
The governmentinsists that it would be an error to hold that the religious beliefs of a corporation's owner are imputed to the corporation for purposes of the First Amendment and the RFRA. (Dkt. 24, pp. 6-7). Otherwise, the governmentargues, every secular corporation with a religious owner would be considered religious and impermissibly expand the scope the freedom to exercise religion and the RFRA. The government's "slippery slope" argument is not wholly without merit to the extent it is concerned that corporations might conjure up religious beliefs in an effort to escape compliance with a federal law with which they do not agree. But those cases are sure to be scant and are just as sure to be obvious. When an individual is acting through an incorporeal form, whether secular or religious, nonprofit or for-profit, incorporated or a partnership, the individual does not shed his right to exercise religion merely because of the
15 Although this discussion focuses onthe corporate plaintiff, redefining the injury makes it
much clearerthat Beckwith is also suffering an injury that is causally related to the action by the government and, therefore, has standing independent of Beckwith Electric.
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"corporate identity" he assumed. See Citizens United, 558 U.S. at 365 ("[T]he Government may not suppress political speechon the basisof speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit
corporations."). This Court is persuadedby Judge Walton's well-reasoned analysis in Tyndale House, in
which he relied heavily on Stormans and Townley. The corporate plaintiff in Tyndale House is a closely-held, for-profit Christian publishing company founded in 1962 by Dr. Kenneth Taylor and his wife, MargaretTaylor. See 904 F. Supp. 2d at 111. The publishingcompanyemploys 260 full-time employees and provides each of them with healthinsurance through a self-insured plan. Id. Thepublishing company's CEO, Mark Taylor, joinedas a plaintiffto challenge the application of the contraceptive mandate because it requires them "to provide and pay for drugs and devices that violate their religious beliefs, and subjects the plaintiffs to heavy fines and penalties if theychoose to violate those beliefs." Id. at 112 (internal citations omitted). The government challenged the standing of the corporate plaintiff on the grounds that'"for-profit corporation^] [do] not exercise religion' within the meaning of the RFRA and the First Amendment." Id. at 114. Judge Walton found several facts relevantto the inquiry: the mission statements and corporate charters of the related companies to "ministerto the spiritual needs of people," the corporation held a weekly "chapel service" for its employees, the majority shareholder (a nonprofit corporation) had a similarly faith-based missionstatement, and the entire board of directors had to sign a "statementof faith" to show that they held certain religious beliefs. Declining to address whether for-profit corporations can exercise religion under the RFRA or the First Amendment, Judge Walton ultimately found that, "as in Townley and Stormans, the beliefs of [the corporate plaintiff] and its owners are indistinguishable" and,
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therefore, it has "shown an 'actual or imminent' injury-in-fact that is 'concrete and particularized' and 'fairly ... traceable' to the contraceptive coverage mandate." Id. at 117 (quoting Lujan, 504 U.S. at 560).
Similarly, the facts in this case show that Beckwith Electric is inculcated with the beliefs of its owner and CEO. Beckwith manages the day-to-day operations of Beckwith Electric and is responsible for establishing all its operational policies. Beckwith believes that "a company managedunder the living God's direction and by God's principles cannot engage in or promote activities that are contrary to such direction, principles, or moral compass." As such, Beckwith's personal religious beliefs, those of the Southern Baptistfaith, pervade the corporate atmosphere at Beckwith Electric. Beckwith allocates corporate resources to fund weekly visits by corporate chaplains to visit the premises of Beckwith Electric and to counsel willingemployees on issues regarding "bereavement, marriage, children, finances, addictions, elder care, and other types of crises." Beckwith Electric, at the behest of Beckwith, also donates to religious charities that provide religious-based services to the community, including New Life Solutions' Family Ministries, which is a "Christ-centered ministry offering hope, help, and healing for women, teens and families by promoting healthy lifestyle choices and relationships." Importantly, Beckwith, accordingto his religious beliefs, established BeckwithElectric's corporatepolicy that it will not obtain a group insurance policy that provides emergency contraceptive drugs or devices. Beckwith asserts that his religious beliefs prohibit him from managing a company, or allocating its resources, in any manner inconsistent with those beliefs, and the government does not challenge the sincerity of those beliefs.
The only arguably material distinction between Tyndale House and the extant case is that the corporate plaintiff in Tyndale House was "religious," i.e., it was a Christian publishing
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company, it had a mission statement with religious undertones, and its board of directors had to sign a statement of faith. Notably, the corporation was also for-profit. Seizing on this distinction, the government relies on the dictionary definition of "secular" (meaning "not overtly or specifically religious") to posit that it would "dramatically expand" the scope of the RFRA and the First Amendment to permit a secular corporation with a religious owner to avail itself the protection of the right to exercise religion. The Court disagrees. Clearly, an individual employed by a secular corporation has the right to exercise religion concomitantly with her
employment. See Sherbert, 374 U.S. at 404 (holding that an employee did not have to work a six-day week—in contravention of her religious beliefs—in order to qualify for state unemployment benefits). But, following the government's logic, that same individual would losethe right to exercise religion merely by changing hats and becoming the employer instead of employee. Hypothetically, that same individual (acting now as an employer) would not be able to challenge—on religious freedom grounds—a federal law that compelled (by threat of substantial fines) all "secular," for-profit businesses to remain open seven days a week. The Courtsees no reasonto distinguish religious freedom rights basedupon the mannerand form that one chooses to make a living. As plaintiffs' counsel remarked at the hearing, "the Southern Baptist faith doesn't give a pass to Mr. Beckwith because he's operating his business in the corporate form." Pragmatically, as the owner and operator of the company who is charged with setting policy, the beliefs of Beckwith are, in essence, the beliefs of Beckwith Electric.
I will end this discussion where it began. The contraceptive mandate does not, at this stage, seem to accommodate the notion of religious tolerance that is embedded in the Constitution and made applicable here throughthe RFRA. On this record, the Court finds that Beckwith's unalienable right to freely exercise his religion is not relinquished simply because he
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chooses to engage in free enterprise using an available corporate form. Here, Beckwith is the majority shareholder and CEO of a closely-held corporation that is inculcated with his religious beliefs. Beckwith Electric is merely the instrument through and by which Beckwith expresses his religious beliefs, and, therefore, has a sufficient nexus with Beckwith to surpass the constitutional and prudential limitations of the Court's jurisdiction. See NAACP v. Alabama ex rel Patterson, 357 U.S. 449,458-59 (1958). Beckwith Electric has shown an actual or imminent injury, that is "concrete and particularized," "fairly traceable" to the contraceptive coverage mandate, and one that can be redressed by a decision of this Court. See Lujan, 504 U.S. at 560. To hold otherwise would place too great a burden on religious freedom based solely upon the manner and form in which an individual decides to conduct business. Accordingly, the Court finds that Beckwith Electric and Beckwith both have standing to challenge the contraceptive mandate in the extant case. II. Plaintiffs are likely to prevail on the merits.
Having decided that Beckwith Electric can exercise religion, or at the very least can assert the free exercise rights of Beckwith, the Court now turns to whether plaintiffs are likely to prevail on the merits of their claim. The RFRA forbids the government from "substantially burdening] a person'sexercise of religion even if the burdenresults from a rule of general applicability" unlessthe government can "demonstrate[ ] that application of the burdento 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-l(a), (b).
A. Does the ACA "substantially burden" the plaintiffs exercise of religion? The next question is whether the contraceptive mandate is a "substantial burden." Under
the RFRA, "exercise of religion" is defined as "any exercise of religion, whether or not
26

Case 8:13-cv-00648-EAK-MAP Document 39 Filed 06/25/13 Page 27 of 37 PageID 900
compelled by, or central to, a system of religious belief." See 42 U.S.C. § 2000bb-2 (defining "exercise of religion" as defined in 42 U.S.C. § 2000cc-5 (2006)). According to the record, plaintiffs' faith-based beliefs "prohibit them from providing, participating in, paying for, training others to engage in, or otherwise supporting emergency contraception, abortion, abortifacients, and any drugs, devices, and services that are capable of killing innocent human life." (Dkt. 10-1,
\ 12). Consequently, BeckwithElectric alleges it cannotallocate its resources to providing FDA-approved emergency contraceptives. Id. It is not within the province of the Court to question the soundness or validity of a religious belief; it is enough that plaintiffs say they have the belief. See Thomas v. Review Bd. oflnd. Emp 'tSec. Div., 450 U.S. 707, 714 (1981). In any event, the government does not challenge the sincerity of their beliefs. (Dkt. 24, p. 6). The contraceptive mandate clearlyplaces a burdenon plaintiffs, but the question is whether it is a
"substantial" one.
To determine whether the contraceptive mandate is a "substantial burden" on the Plaintiffs' religious exercise, the Court must consider whether the government actionputs substantial pressure on them"to perform acts undeniably at odds with fundamental tenets of their religious beliefs." See Yoder, 406 U.S. at 218. It is also a "substantial burden" if the
government action puts "substantial pressure onan adherent to modify his behavior and to violate their beliefs[.]" Thomas, 450 U.S. at 716-17. The Supreme Court has held that the "collection and payment of generally applicable taxes" do not typically impose a significant burden, but recognized that a "more onerous tax" may effectively "choke off an adherent's religious practices so as to constitute a substantial burden. Jimmy Swaggart Ministries v. Bd. of
Equalization ofCalifornia, 493 U.S. 378, 392 (1990).
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Case 8:13-cv-00648-EAK-MAP Document 39 Filed 06/25/13 Page 28 of 37 PageID 901
The two cases expressly referenced in the RFRA—Sherbert and Yoder—are particularly instructive. In Sherbert, the Supreme Court held that the denial of state unemployment benefits because the plaintiff refused to work on Saturdays, in accordance with her religious beliefs, was a substantial burden on her religious exercise rights. 374 U.S. at 403-404. The state unemployment law "forces her 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. Id. at 404. In Yoder, the Supreme Court held that a state compulsory education law mandating high school attendance until the age of sixteen substantially burdened the plaintiffs' religious exercise because the "law affirmatively compelled] them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs." 406 U.S. at 218. The Amish plaintiffs in Yoder believed that formal education beyond the eighth grade placed their youth in an environment hostile to their religious tenets because it placedtoo great an emphasis on competitive grades and sports, as opposed to the Amish lifestyle that favored manual labor and self-reliance. Id. at 211.
Just as in Sherbert, the plaintiffs in the extant case are faced with the impossible choice of either complying with the contraceptive mandate and forfeiting their deeply held religious beliefs, on the one hand, or staying true to the tenets oftheir faith and facing substantial fines, on the other hand. See (Dkt 10-1, \ 41). The burden of compliance is substantial in the extant case because of the specific manner in which Beckwith Electric currently operates its business. Beckwith Electric currently provides health insurance for its employees, but carves out coverage for contraceptive drugs and devices consistent with the beliefs ofthe Southern Baptist faith. As an alternative, Beckwith Electric provides its employees with counseling by corporate chaplains on matters relating to, among other things, family planning and women's health issues. As a
28

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means by which to force plaintiffs into compliance, the contraceptive mandate carries with it substantial penalties against those who do not comply. See 26 U.S.C. § 4980D(a), (b) (imposing a tax against employers that do not provide compliantgroup plans in the amount of $100 per day for each employee); 26 U.S.C. § 4980H (establishing tax penalties in the amount of $2,000 per each full-time employee against any employer that fails to provide "minimal essential coverage"); 29 U.S.C. § 1132(a) (providing for civil enforcement actions). This type of compulsory compliance with a federal law is certainly a "substantial burden" on Beckwith Electric. See Boerne, 521 U.S. at 534 ("Claims that a law substantially burdens someone's exercise of religion will often be difficult to contest.").
The government argues that any burden imposed by the contraceptive mandate is far too attenuated to constitute a "substantial burden." (Dkt. 24, p. 12-13). Equating a group health plan with a salary, the governmentposits that Beckwith Electric,through Mr. Beckwith, "has no right to controlthe choices of his company's employees, who may or may not share his religious beliefs, when making use of their benefits." (Dkt. 24, p. 12) (emphasis added); see also O'Brien v. HHS, 894 F. Supp. 2d 1149(E.D. Mo. 2012) ("[T]he particular burdenof which plaintiffs complain is that funds, which plaintiffs will contribute to a group healthplan, might, after a series of independent decisions by health careproviders and patients covered by [the company's] plan, subsidize someone else's participation in an activity that is condemned by plaintiffs' religion.") (emphasis in original); Hobby Lobby, 870 F. Supp. 2d at 1294,affd, 2012 WL 6930302, at *3 (10th Cir. 2012). The fallacy in this argument is that it mischaracterizesthe burden placed on plaintiffs. Plaintiffs are not objectingto the use of emergency contraceptives by Beckwith Electric's employees. Rather, the particular burden to which plaintiffs object is the provision of group insurance premiums that covers emergency contraception. (Dkt. 10-1, \ 14).
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"Because it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties." Tyndale House, 904 F. Supp. 2d at 123.
Accordingly, the Court finds that plaintiffs have met their burden of showing that the contraceptive mandate substantially burdens their religious exercise.
B. The contraceptive mandate does not further of a compelling governmental interest,
nor is it the least restrictive means.
The inquiry does not end merely because the government action is found to substantially burden religious exercise rights. Once a plaintiff demonstrates a "substantial burden" on its religious freedom, the government then bears the burden of demonstrating a "compelling interest to justify that burden." O Centro, 546 U.S. at 429.
The government asserts two compelling interests. First, the government claims to have a generalized interest in "safeguarding the public health by regulating the health care and insurance markets." (Dkt. 24, p. 13) (citing Dickerson v. Stuart, 877 F. Supp. 1556,1559 (M.D. Fla. 1995)) (additional internal citations omitted). As a direct benefit of a regulated health care and insurance market, the public will enjoy improved health conditions resulting from "reduced transmission, prevention or delayed onset, and earlier treatment of disease." (Dkt. 24, p. 13) (quoting 75 Fed. Regs. 41,726 and 41,733). Relying on the finding of the IOM, the government claims that increased access to FDA-approved contraceptive services are essential to the continued improvement of the predicted health outcomes. IOM Rep. at 20, 103. According to the IOM, the health risks stemmed largely from unintended pregnancies, which may delay access to prenatal care, prolong risky behavior that can endanger the fetus, as well as cause certain mental illness such as depression and anxiety. Id. Second, the government also claims a
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compelling interest in "removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women." (Dkt. 24, p. 14) (quoting Roberts v. UnitedStates Jaycees, 468 U.S. 609,626 (1984)). The government asserts that the ACA and contraceptive mandate are Congress's "attempt to equalize the provision of preventative care services, with the resulting benefit of women being able to equally contribute as healthy and productive members of society, furthers a compelling governmental interest." (Dkt. 24, p. 14) (internal citations omitted).
The government's interest in promoting public health and equality of health care for women is certainly compelling in a broad, general sense. Citing the two cases expressly referenced in the RFRA, the Supreme Court noted, however, that courts should look "beyond broadlyformulated interestsjustifying the general applicability of governmentmandates and scrutinize^ the asserted harm of granting specific exemptionsto particular religious claimants." O Centro, 546 U.S. at 431. For instance, in Yoder, the Supreme Court exempted Amish children from a compulsory school attendance law even though the state had a "paramount" interestin education." 406 U.S. at 213. Absent a showing "with more particularity how its admittedly strong interest... would be adversely affected by granting an exemption to the Amish[,]n the state was not able to satisfy its burden. Similarly, in Sherbert, the Supreme Court exempted a worker from a state law that denied unemployment benefits to persons that refused to work on Saturdays, but notedthat this exemption would not apply to an individual whose "religious convictions serve to make him a nonproductive member of society." 374 U.S. at 410. "RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person' - the particular claimantwhose sincere exercise of religion is being substantially burdened. O Centro, 546 U.S. at 430-31 (citing 42 U.S.C. §
31

Case 8:13-cv-00648-EAK-MAP Document 39 Filed 06/25/13 Page 32 of 37 PageID 905
2000bb-l(b)); see also 42 U.S.C. § 2000bb-1(b)(1) ("[The] Government] may substantially burden a person's exercise of religion only ifit demonstrates that application ofthe burden to the person ....") (emphasis added).
The Court is not particularly persuaded by the government's evidence to support its compelling interest. For example, there is no empirical data or other evidence in the cited provisions of the IOM that would support the conclusion that the provision of the FDA-approved emergency contraceptives (in addition to the contraceptives to which plaintiffs do not object) would result in fewer unintended pregnancies, an increased propensity to seek prenatal care, or a lower frequency of risky behavior endangeringunborn babies. See, e.g., Tyndale House, 904 F. Supp. 2d at 126-27.
Additionally, plaintiffs argue that the "massive" number of employees and plan participants omitted from the contraceptivemandate vis-a-visthe several exemptions "radically undermines" any claim that the mandate furthers a compelling interest. (Dkt. 10, pp. 1520). The parties disagree mightily as to the size and the effect of the exemptions. The government characterizes the plaintiffs' 200 million figure as a "gross" overstatement of the individuals in grandfathered plans. (Dkt. 24, p. 16, at n. 13) (citing statistics from the Kaiser Family Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey, available at http://ehbs.kff.org/pdf/2012/ 8345.pdf). Unfortunately, while the empirical data suppliedby the government does show a downward trend of grandfathered health plans, the governmentfails to provide the Court with any meaningful information from which it can derive the actual number of employees exempted from compliance with the contraceptive mandate. Even on this record, it appears the number is quite large. See also Geneva College, 2013 WL 838238, at *25 ("[S]everal other courts addressing similar challenges to the mandate's
32

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requirements pointed out that over 190 million individuals have already been exempted from the mandate's requirements as a result of the grandfathering provisions in the ACA.") (citing Newlandv. Sebelius, 881 F. Supp. 2d 1287,1298 (D. Colo. 2012) ("[t]he government has exempted over 190 million health plan participants... from the preventative care coverage mandate"); Tyndale House, 2012 WL 5817323, at *18 ("Indeed, the 191 million employees excluded from the contraceptive coverage mandate include those covered by grandfathered plans alone.")). The government's best case scenario is that by the end of 2013, 51 percent of employer plans will have lost "grandfathered" status. See (Dkt. 24, p. 16, n. 13 (citing 75 Fed. Reg. at 34,552-53). That still leaves roughly a third of America's population (i.e., 100 out of 313.0 million) exempt from the contraceptive mandate.
Generally speaking, that several million Americans are already exempt from the RFRA cuts against a finding that the government has a compelling interest here to be served by the contraceptive mandate. See, e.g., O Centro, 546 U.S. at 432-34 ("The fact that the [Controlled Substances] Act itself contemplates that exempting certain people from its requirements would be 'consistent with the public health and safety' indicates that congressional findings with respect to Schedule I substances should not carry the determinative weight, for RFRA purposes, that the Government would ascribe to them."); Church ofthe Lukumi Babalu, 508 U.S. at 537 ("As we noted in Smith, in circumstances in which individualized exemptions from a general requirement are available, the government 'may not refuse to extend that system to cases of religious hardship without compelling reasons.'") (internal citations omitted).
Turning to whether the purportedly compelling interest is satisfied with respect to these plaintiffs, as this Court must do, see id. at 430-31, the result remains the same. On this record, it is undisputed that as of August 2012, "no plan participant has used the coverage for any
33

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abortifacient drugs from the list of emergency contraceptives." See (Dkt. 10-2, ^| 12).
Importantly, the government has the burden to establish this prong of the analysis because it is an
affirmative defense. See O Centro, 546 U.S. at 429-30. Taking what each party says at face
value—plaintiffs claim that hundreds of millions are exempt and the government says it's a
fraction of that—the Court is left with record evidence that is, at best, in equipoise. Accordingly,
the government failed to meet its burden of proof that the contraceptive mandate furthers a
compelling government interest. See id. (affirming injunctive relief granted because the
evidence ofthe government's compelling interest was inequipoise).16
III. Plaintiffs will suffer irreparable harm if the injunction does not issue.
It is well-settled that "[t]he loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury." Elrodv. Burns, All U.S. 347, 373
(1976). "Although a violation of the First Amendment 'does not automatically require a finding
of irreparable injury, thus entitling a plaintiff to a preliminary injunction if he shows a likelihood
of success on the merits,' the injury in this case constituted 'direct penalization, as opposed to
incidental inhibition' of First Amendment rights and thus could not be remedied absent an
injunction." KH Outdoor, LLCv. City ofTrussville, 458 F.3d 1261, 1272 (11th Cir. 2006)
(quoting Hohe v. Casey, 868 F.2d 69, 72-73 (11th Cir. 1989)). Since June 1, 2013, the plaintiffs
16 Because the Court finds that the government failed to satisfy its burden that the contraceptive mandate furthers a compelling government interest, the Court need not reach the question of whether it is the least restrictive means. That being said, the Court notes that the government is currently subsidizing contraceptives. Enacted in 1970, Title X of the Public Health Service Act provides funding for family planning and related preventative health services. See 42 C.F.R. 59.5. In 2011, $276 million of the $1.3 billion spent on delivering Title X-funded family planning services came directly from Title X revenue sources. Certainly forcing private employers to violate their religious beliefs in order to supply emergency contraceptives to their employees is more restrictive than finding a way to increase the efficacy of an already established program that has a reported revenue stream of $1.3 billion. See Family Planning Annual report: 2011 National Summary, available at http://www.hhs.gov/opa/pdfs/fpar-2011national-summary.pdf.
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have been in violation of the contraceptive mandate. The penalties for continued noncompliance could be crippling, and effectively force Beckwith Electric to close its door or violate its sincerely held religious beliefs. The Court finds that the record supports a finding that plaintiffs will suffer irreparable harm in the event an injunction does not issue. IV. The balance of harms tips in favor of the plaintiffs.
The government argues that "[e]njoining the regulations as to for-profit, secular companies would undermine the government's ability to achieve Congress's goals of improving the health of women and children and equalizing the coverage of preventative services for women and men." (Dkt. 24, p. 20). In light of the several million Americans already exempted from coverage under the contraceptive mandate, the Court is not persuaded that there is any real harm to the government in this case. Moreover, as the plaintiffs point out, the government has already consented to the entry of injunctive relief in several other cases. See (Dkt. 10, p. 23) (citing Geneva College, 2013 WL 1703871, at *12 (identifying several cases in which the government acquiesced to injunctive relief)). If the government is willing to grant exemptions for no less than one third of all Americans, and it is willing to consent to injunctive relief in cases that do not fall within those exemptions, then it can suffer no appreciable harm by permitting an additional 168 employees (i.e., less than .0002 percent of those already exempted) to be exempted. Accordingly, the balance of harms tips in favor of plaintiffs. V. It is in the public interest to grant the injunction.
As the Eleventh Circuit has noted, it is never in the public interest to enforce unconstitutional laws. See KH Outdoor, 458 F.3d at 1272 (citing Joelner v. Vill. of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004) (noting "it is always in the public to protect First Amendment liberties")). Defendant argues counter that "[i]t would be contrary to the public
35

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interest to deny Beckwith Electric's employees (and their families)—who may not share Mr. Beckwith's beliefs—the benefits of the preventative coverage regulations. (Dkt. 24, p. 20) (citing Weinberger v. Romero-Barcelo, 456 U.S. 305,212 (1982)). The flaw in the government's argument is that the record evidence suggests that Beckwith Electric's employees are not burdened at all by the decision to withhold coverage for emergency contraceptives from the group policy. There is no evidence that Beckwith Electric's employees sought but were refused access to the FDA-approved emergency contraceptives to which plaintiffs object. In fact, there is evidence to the contrary. See (Dkt. 10-2, ^ 12). As such, and having found that the contraceptive mandate likely violates the religious freedom rights of the plaintiffs, the Court finds that it is in the public interest to grant the injunction.
VI. Conclusion
The First Amendment, and its statutory corollary the RFRA, endow upon the citizens of the United States the unalienable right to exercise religion, and that right is not relinquished by efforts to engagein free enterprise underthe corporate form. No legislative, executive, or judicial officer shall corrupt the Framers' initial expression, through their enactment of laws, enforcement of those laws, or more importantly, their interpretation of those laws. And any action that debases, or cheapens, the intrinsic value of the tenet of religious tolerance that is entrenched in the Constitution cannot stand. On this record, the plaintiffs have established all four elements for the entry of a preliminary injunction. Accordingly, it is
ORDERED that plaintiffs' motion for preliminary injunctive relief is GRANTED. The government is enjoined from enforcing the contraceptive mandate consistent with the terms of this order. Plaintiffs are required to post a bond in the amount of $75,000.00.
36

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DONE AND ORDERED in Chambers in Tampa, Florida this^^day of June, 2013
Copies furnished to: All Counsel of Record
37

 
 Case 8:13-cv-00648-EAK-MAP Document 45 Filed 08/23/13 Page 1 of 5 PageID 921

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

)

BECKWITH ELECTRIC CO., INC., and THOMAS R. BECKWITH,

) ) )

Plaintiffs,

) )

v.

) )

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States

)

Department of Health and Human Services, et al.,

) ) )

Defendants.

)

)

Case No. 8:13-cv-648-EAK-MAP

UNOPPOSED MOTION TO STAY PROCEEDINGS

Defendants respectfully ask this Court to stay all pro ceedings in th is case pending the

resolution of defendants’ appeal to the United States Court of Appeals for the Eleventh Circuit of

this Court’s order granting plaintiffs’ m otion for preliminary injunction. Pursuant to Local Rule

3.01(g), undersigned counsel conferred with counsel for plaintiffs, who represented that plaintiffs

do not oppose this request.

In support of this motion, defendants state as follows:

1. This Court granted plaintiffs’ motion for preliminary injunction on June 25, 2013.

See Order, ECF No. 39.

2. On August 22, 2013, defendants filed a Notice of Appeal in which defendants

appealed this Court’s or der granting plaintiffs’ motion for preliminary injunction to the United

States Court of Appeals for the Eleventh Circuit. See Notice of Appeal, ECF No. 43.

3. Defendants’ response to plaintiffs’ co mplaint is currently due on September 2,

2013. See Endorsed Order, ECF No. 41. Absent a stay of district court proceedings, defendants

Case 8:13-cv-00648-EAK-MAP Document 45 Filed 08/23/13 Page 2 of 5 PageID 922
intend to m ove to d ismiss the com plaint in its entirety under Federal Ru le of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.
4. “[T]he power to stay p roceedings is in cidental to the power inherent in every court to control the disposition of the causes of its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936). “Although the filing of an interlocutory appeal does not automatically stay proceedings in the district court, the district court has broa d discretion to decide whether a stay is appropriate to prom ote economy of tim e 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 First Am endment claims that are likely to be addressed by th e Eleventh Circuit in adjudicating defendants’ appeal of this Court’ s grant of a prelim inary injunction. Defendants believe it would be inefficien t to concurr ently litigate these issues in both courts. See Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1198 (11th Cir. 2009) (“[T]he reason for the district court’s stay was at least a good one, if not an excellent one: to await a federal appellate decision that is likely to have a substantial or controlling effect on the claims and issues in th e stayed case.”). In the m eantime, there will be no prejudice to plaintiffs, as they will have the benefit of the preliminary injunction during the pendency of the stay.
6. Defendants note that numerous district courts have stayed proceedings in similar circumstances in litigation challeng ing the preventive services coverage regulations. See, e.g., Order, Tonn and Blank Construction LLC v. Sebelius, No. 12-cv-00325-JD-RBC (N.D. Ind. Aug.
2

Case 8:13-cv-00648-EAK-MAP Document 45 Filed 08/23/13 Page 3 of 5 PageID 923

16, 2013), ECF No. 46; Order, Ozinga v. U.S. Dep’t of Health & Human Servs. , No 13-cv-3292

(N.D. Ill. Aug. 14, 2013), ECF No. 29; Order, American Pulverizer Co. v. U.S. Dep’t of Health

& Human Servs., No 12-cv-3459 (W.D. Mo. Feb. 20, 2013), ECF No. 45; Order, Annex Medical,

Inc. v. Sebelius, No. 12-cv-02804-DSD-SER (D. Minn. Jan. 25, 2013), ECF No. 53; Order, Korte

v. Sebelius, No. 3:12-cv-01072 (S.D. Ill. Dec. 28, 2012), ECF No. 63.

Accordingly, defendants respectfully request th at this Court enter an o rder staying all

district court proceedings until the Eleventh Circ uit issues a ruling resolving defendants’ app eal

of this Court’s order granting preliminary injunctive relief.

Respectfully submitted this 23rd day of August, 2013,

STUART F. DELERY Assistant Attorney General

IAN

HEATH GERSHENGORN

Deputy Assistant Attorney General

ROBE United

RT E. O’NEILL States Attorney

MICHAEL KENNETH Assistant United States Attorney 400 North Tampa Street, Suite 3200 Tampa, FL 33602 Telephone: (813) 274-6000 Facsimile: (813) 274-6198 Email: michael.kenneth@usdoj.gov

JENNIFER

RICKETTS Director

SHEILA Deputy

M. LIEBER Director

MICHAEL Trial United Civil

_/s/ Michael C. Pollack C. POLLACK (NY Bar)
Attorney States Department of Justice
Division, Federal Programs Branch

3

Case 8:13-cv-00648-EAK-MAP Document 45 Filed 08/23/13 Page 4 of 5 PageID 924 20 Massachusetts Avenue NW, Room 6143 Washington, DC 20530 Telephone: (202) 305-8550 Facsimile: (202) 616-8470 Email: michael.c.pollack@usdoj.gov Attorneys for Defendants
4

Case 8:13-cv-00648-EAK-MAP Document 45 Filed 08/23/13 Page 5 of 5 PageID 925 CERTIFICATE OF SERVICE
I hereby certify that on A ugust 23, 2013, I electronically fi led the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Michael C. Pollack MICHAEL C. POLLACK
5

 
 Case 8:13-cv-00648-EAK-MAP Document 46 Filed 08/26/13 Page 1 of 1 PageID 926

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

BECKWITH ELECTRIC CO., INC., and THOMAS BECKWITH,
Plaintiffs,
vs.

CASE NO. 8:13-cv-0648-T-17MAP

KATHLEEN SEBELIUS, et al.,
Defendants. /
ORDER ON DEFENDANTS' UNOPPOSED MOTION FOR STAY
Defendants seek a stay of these proceedings pending the resolution of the appeal to the United States Court of Appeals for the Eleventh Circuit. (Dkt. 45). Plaintiffs do not oppose. Accordingly, it is
ORDERED that this case is stayed until further order of this Court. The Clerk of Court is ordered to administratively close this case.
*c. DONE AND ORDERED in Chambers in Tampa, Florida this^2^ay of August, 2013

Copies furnished to: All Counsel of Record

 
 Case 8:13-cv-00648-EAK-MAP Document 49 Filed 09/05/14 Page 1 of 2 PageID 932 Case: 13-13879 Date Filed: 09/04/2014 Page: 1 of 1

Case 8:13-cv-00648-EAK-MAP Document 49 Filed 09/05/14 Page 2 of 2 PageID 933 Case: 13-13879 Date Filed: 09/04/2014 Page: 1 of 1

John Ley Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
September 04, 2014

For rules and forms visit www.ca11.uscourts.gov

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 13-13879-V Case Style: Beckwith Electric Co., Inc., et al v. Secretary, US Department of H, et al District Court Docket No: 8:13-cv-00648-EAK-MAP

The enclosed copy of this Court's Order of Dismissal is issued as the mandate of this court. See 11th Cir. R. 41-4. Counsel and pro se parties are advised that pursuant to 11th Cir. R. 27-2, "a motion to reconsider, vacate, or modify an order must be filed within 21 days of the entry of such order. No additional time shall be allowed for mailing."
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Toni L. Harper Phone #: (404) 335-6142
Enclosure(s)

DIS-4 Multi-purpose dismissal letter

 
 Case 8:13-cv-00648-EAK-MAP Document 51 Filed 02/09/15 Page 1 of 3 PageID 934

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

)

BECKWITH ELECTRIC CO., INC., and THOMAS R. BECKWITH,

) ) )

Plaintiffs,

) )

v.

) )

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States

)

Department of Health and Human Services, et al.,

) ) )

Defendants.

)

)

Case No. 8:13-cv-648-EAK-MAP

JOINT MOTION FOR ENTRY OF INJUNCTION AND JUDGMENT

In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the parties jointly agree that judgment should be entered in favor of plaintiffs on their Religious Freedom Restoration Act claim, that a permanent injunction should be entered, and that all other claims against defendants should be dismissed. Accordingly, the parties respectfully request that the Court enter the attached Injunction and Judgment, which has been agreed to by all parties. The parties further request that this joint motion be deemed to satisfy the parties’ obligation to file a status report by February 9, 2015 (see ECF No. 50).

Respectfully submitted this 9th day of February, 2015,

Attorney for Plaintiffs

_s/ Erin Elizabeth Mersino

_

Erin Elizabeth Mersino

THOMAS MORE LAW CENTER

P.O. Box 393

24 Frank Lloyd Wright Drive

Ann Arbor, MI 48106

(734) 827-2001

Fax: (734) 930-7160

Email: emersino@thomasmore.org

Case 8:13-cv-00648-EAK-MAP Document 51 Filed 02/09/15 Page 2 of 3 PageID 935

Attorneys for Defendants

JOYCE R. BRANDA Acting Assistant Attorney General

A. LEE BENTLEY, III United States Attorney

JENNIFER RICKETTS Director, Federal Programs Branch

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

2

Case 8:13-cv-00648-EAK-MAP Document 51 Filed 02/09/15 Page 3 of 3 PageID 936

CERTIFICATE OF SERVICE

I hereby certify that on February 9, 2015, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.

/s/ Michelle R. Bennett

_

MICHELLE R. BENNETT

3

 
 Case 8:13-cv-00648-EAK-MAP Document 52 Filed 02/10/15 Page 1 of 3 PageID 940

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

)

BECKWITH ELECTRIC CO., INC., and

) )

THOMAS R. BECKWITH,

)

Plaintiffs,

) )

)

)

vs.

) )

)

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary, United States

)

Department of Health and Human Services,)

et al.,

Defendants.

Case No. 8:13-cv-648-EAK-MAP

ORDER OF INJUNCTION AND JUDGMENT
This cause is before the Court on the Joint Motion for Entry of Injunction and
Judgment (Doc. 51). In light of the Supreme Court’s decision in Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751 (2014), and upon the parties’ Joint Motion for Entry of
Injunction and Judgment, it is hereby
ORDERED that defendants, their employees, agents, and successors in office are
permanently enjoined
(a) from enforcing
(1) the “June 30, 2014 Contraceptive Coverage Requirement,” defined here to include those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiff Beckwith Electric Co., Inc. to provide its employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs object on religious grounds, e.g., 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.7152713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and

Case 8:13-cv-00648-EAK-MAP Document 52 Filed 02/10/15 Page 2 of 3 PageID 941
(2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D and 29 U.S.C. §§ 1132 and 1185d; and (b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement against plaintiff Beckwith Electric Co., Inc., its employee health plan(s), the group health coverage provided in connection with such plan(s), and/or Beckwith Electric Co., Inc.’s health insurance issuers and/or third-party administrators with respect to plaintiff Beckwith Electric Co., Inc.’s health plan(s); and it is further ORDERED that judgment is entered in favor of plaintiffs and against defendants on plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and it is further ORDERED that all other claims against Defendants are DISMISSED; and it is further ORDERED that the Parties will meet and confer to reach agreement on attorneys’ fees and costs. The Parties will file a joint status report, including a recommendation for further proceedings, by no later than April 9, 2015. If there is no resolution of the attorneys’ fees and costs in this matter, Plaintiffs may file a motion for attorneys’ fees and costs within thirty days of April 9, 2015, pursuant to Fed.R.Civ.P. 54; and it is further
2

Case 8:13-cv-00648-EAK-MAP Document 52 Filed 02/10/15 Page 3 of 3 PageID 942 ORDERED that this Injunction and Judgment does not apply with respect to any
changes in statute or regulation that are enacted or promulgated after this date, and nothing herein prevents plaintiffs from filing a new civil action to challenge any such future changes.
ORDERED that the $75,000.00 bond provided by plaintiffs to secure the preliminary injunction is no longer necessary and shall be returned to plaintiffs with accrued interest, if any. The Clerk of Court is directed to close this case and to terminate any pending motions.
DONE and ORDERED in Chambers, in Tampa, Florida, this 10th day of February, 2015.
Copies to: All Parties and Counsel of Record
3

 
 Case: 8:13-cv-648 As of: 11/17/2017 02:08 PM EST 1 of 9
U.S. District Court Middle District of Florida (Tampa) CIVIL DOCKET FOR CASE #: 8:13−cv−00648−EAK−MAP

CLOSED

Beckwith Electric Co., Inc. et al v. Sebelius et al Assigned to: Judge Elizabeth A. Kovachevich Referred to: Magistrate Judge Mark A. Pizzo Case in other court: 11th Circuit, 13−13879−AA Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/12/2013 Date Terminated: 08/26/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Beckwith Electric Co., Inc.

represented by Erin Elizabeth Mersino Great Lakes Justice Center 5600 W. Mount Hope Hwy Lansing, MI 48917−7510 917/826−8469 Fax: 734/930−7160 Email: emersino@saltlightglobal.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul Rodger Pizzo Paul Pizzo, Esq. 3228 Fountain Blvd. Tampa, FL 33609 8137651331 Email: ppizzo44@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Thompson THOMAS MORE LAW CENTER 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 734/827−2001 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Scott A. Richards Buchanan Ingersoll & Rooney, PC 401 E Jackson St Ste 2400 Tampa, FL 33602−5236 813/228−7411 Fax: 813/229−8313 Email: scott.richards@bipc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Thomas R. Beckwith Chief Executive Officer and Primary Shareholder of Beckwith Electric Co., Inc.

represented by Erin Elizabeth Mersino (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul Rodger Pizzo (See above for address) LEAD ATTORNEY

Case: 8:13-cv-648 As of: 11/17/2017 02:08 PM EST 2 of 9
ATTORNEY TO BE NOTICED
Richard Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott A. Richards (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius Secretary of the United State Department of Health and Human Services
Defendant United States Department of Health and Human Services
Defendant Seth D. Harris Acting Secretary of the United States Department of Labor

represented by Michael Charles Pollack US Department of Justice − Civil Division 20 Massachusetts Ave NW Room 6143 Washington, DC 20530 202−305−8550 Fax: 202−616−8470 Email: michael.c.pollack@usdoj.gov TERMINATED: 05/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Bennett US Department of Justice − Civil Division Room 6140 20 Massachusetts Ave NW Washington, DC 20530 202/305−8902 Fax: 202/616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael Charles Pollack (See above for address) TERMINATED: 05/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael Charles Pollack (See above for address) TERMINATED: 05/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:13-cv-648 As of: 11/17/2017 02:08 PM EST 3 of 9

Defendant United States Department of Labor

represented by Michael Charles Pollack (See above for address) TERMINATED: 05/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jack Lew Secretary of the United States Department of the Treasury

represented by Michael Charles Pollack (See above for address) TERMINATED: 05/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
United States Department of the Treasury

represented by Michael Charles Pollack (See above for address) TERMINATED: 05/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
ACLU of Florida 4500 Biscayne Blvd Suite 340 Miami, FL 33137 786−363−2700

represented by Yvette Acosta MacMillan Pinellas County Attorney's Office 6th Floor 315 Court St Clearwater, FL 33756 727−464−3354 Fax: 727−464−4147 Email: yacostamacmillan@pinellascounty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria Kayanan ACLU Foundation of Florida, Inc. Suite 340 4500 Biscayne Blvd Miami, FL 33137 305−815−7131 Email: mkhellsten@gmail.com ATTORNEY TO BE NOTICED

Amicus
The Association of Gospel Rescue Missions

represented by Roger K. Gannam Liberty Counsel PO Box 540774 Orlando, FL 32854

Case: 8:13-cv-648 As of: 11/17/2017 02:08 PM EST 4 of 9

800/671−1776 Fax: 407/875−0770 Email: rgannam@lc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Prison Fellowship Ministries

represented by Roger K. Gannam (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Association of Christian Schools International

represented by Roger K. Gannam (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Ethics & Religious Liberty Commission of the Southern Baptist Convention

represented by Roger K. Gannam (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Institutional Religious Freedom Alliance

represented by Roger K. Gannam (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Christian Legal Society

represented by Roger K. Gannam (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus The C12 Group

represented by Roger K. Gannam (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus National Association of Evangelicals

represented by Roger K. Gannam (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
State of Florida, Office of the Attorney General

represented by Blaine H. Winship Office of the Attorney General PL−01 − The Capitol 400 S Monroe St Tallahassee, FL 32399−1050 850/414−3657 Fax: 850/488−4872 Email: blaine.winship@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 8:13-cv-648 As of: 11/17/2017 02:08 PM EST 5 of 9

Date Filed 03/12/2013
03/12/2013 03/13/2013 03/18/2013
03/19/2013 03/19/2013 03/22/2013 03/22/2013
04/10/2013 05/13/2013 05/13/2013 05/15/2013
05/20/2013 05/22/2013
05/23/2013 05/23/2013 05/23/2013

# Docket Text
1 COMPLAINT against Seth D. Harris, Jack Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Filing fee $ 350 receipt number TPA16274) filed by Thomas R. Beckwith, Beckwith Electric Co., Inc.. (Attachments: # 1 Civil Cover Sheet)(VCG) (Entered: 03/13/2013)
2 SUMMONS issued as to Seth D. Harris, Jack Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (VCG) (Entered: 03/13/2013)
3 STANDING ORDER: Filing of documents that exceed twenty−five pages. Signed by Judge Elizabeth A. Kovachevich on 07/15/2008. (VCG) (Entered: 03/13/2013)
4 MOTION for Erin Mersino to appear pro hac vice by Thomas R. Beckwith, Beckwith Electric Co., Inc.. (Attachments: # 1 Exhibit A, Special Admission Certification)(Richards, Scott) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 03/18/2013)
5 NOTICE of designation under Local Rule 3.05 − Track 2 (CLM) (Entered: 03/19/2013)
6 SUMMONS issued as to U.S. Attorney and U.S. Attorney General. (VCG) (Entered: 03/20/2013)
7 ORDER granting 4 motion for Erin Elizabeth Mersinoto appear pro hac vice on behalf of Plaintiffs. Signed by Magistrate Judge Mark A. Pizzo on 3/22/2013. (DK) (Entered: 03/22/2013)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney EErin Elizabeth Mersino, appearing on behalf of Thomas R. Beckwith, Beckwith Electric Co., Inc. (Filing fee $10 receipt number TPA16445.). (JNB) (Entered: 03/22/2013)
8 CERTIFICATE of interested persons and corporate disclosure statement by Thomas R. Beckwith, Beckwith Electric Co., Inc.. (Richards, Scott) (Entered: 04/10/2013)
9 PROOF of service by Thomas R. Beckwith, Beckwith Electric Co., Inc. (Richards, Scott) (Entered: 05/13/2013)
10 MOTION for preliminary injunction by All Plaintiffs. (Attachments: # 1 Exhibit 1, Declaration of Thomas Beckwith, # 2 Exhibit 2, Declaration of Joni Smith, # 3 Exhibit 1 to Exhibit 2)(Richards, Scott) (Entered: 05/13/2013)
11 Unopposed MOTION to extend time to Respond to Complaint by Seth D. Harris, Jack Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pollack, Michael) (Entered: 05/15/2013)
12 ENDORSED ORDER granting 11 Motion to extend time to respond to the complaint for 30 days following order on motion for preliminary injunction. Signed by Judge Elizabeth A. Kovachevich on 5/20/2013. (SN) (Entered: 05/20/2013)
13 NOTICE of supplemental authority re 10 MOTION for preliminary injunction by Thomas R. Beckwith, Beckwith Electric Co., Inc. (Attachments: # 1 Exhibit A, Determination from Florida's Office of Insurance Regulation)(Richards, Scott) (Entered: 05/22/2013)
14 NOTICE of Appearance by Maria Kayanan on behalf of ACLU of Florida (Kayanan, Maria) (Entered: 05/23/2013)
15 NOTICE of Appearance by Yvette Acosta MacMillan on behalf of ACLU of Florida (Acosta MacMillan, Yvette) (Entered: 05/23/2013)
16 MOTION for Jennifer Lee to appear pro hac vice by ACLU of Florida. (Attachments: # 1 Exhibit A)(Acosta MacMillan, Yvette) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 05/23/2013)

Case: 8:13-cv-648 As of: 11/17/2017 02:08 PM EST 6 of 9

05/23/2013 05/24/2013 05/24/2013 05/24/2013 05/24/2013 05/28/2013 05/28/2013 05/28/2013 05/28/2013 05/28/2013
05/29/2013 05/29/2013
05/29/2013
05/29/2013

17 MOTION for Daniel Mach to appear pro hac vice by ACLU of Florida. (Attachments: # 1 Exhibit A)(Acosta MacMillan, Yvette) Motions referred to Magistrate Judge Mark A. Pizzo. (Entered: 05/23/2013)
18 MOTION to file amicus brief by ACLU of Florida. (Acosta MacMillan, Yvette) (Entered: 05/24/2013)
19 Joint MOTION to extend time to meet and submit a Case Management Report by All Defendants. (Pollack, Michael) (Entered: 05/24/2013)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Jennifer Lee, appearing on behalf of ACLU of Florida (Filing fee $10 receipt number TPA17559.). (JNB) (Entered: 05/24/2013)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Daniel Mach, appearing on behalf of ACLU of Florida (Filing fee $10 receipt number TPA17559.). (JNB) (Entered: 05/24/2013)
20 NOTICE of hearing on motion 10 MOTION for preliminary injunction. Motion Hearing set for 6/17/2013 at 10:30 AM in Tampa Courtroom 14 A before Judge Elizabeth A. Kovachevich. (CLM) (Entered: 05/28/2013)
21 ENDORSED ORDER granting 18 Motion to file amicus brief. The American Civil Liberties Union ("ACLU") and the ACLU of Florida may file an amicus curiae brief, which shall not exceed fifteen (15) pages, by no later than noon on June 4, 2013. Signed by Judge Elizabeth A. Kovachevich on 5/28/2013. (JPS) (Entered: 05/28/2013)
22 ENDORSED ORDER granting 19 Motion to extend time. The parties shall submit a case management report within 30 days of the date the Court rules on the pending motion for preliminary injunction. Signed by Judge Elizabeth A. Kovachevich on 5/28/2013. (JPS) (Entered: 05/28/2013)
23 MEMORANDUM in opposition re 10 Motion for preliminary injunction by Amici ACLU filed by ACLU of Florida. (Attachments: # 1 Exhibit 6th Circuit Order)(Kayanan, Maria) (Entered: 05/28/2013)
24 MEMORANDUM in opposition re 10 Motion for preliminary injunction filed by Seth D. Harris, Jack Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Exhibit Autocam Sixth Circuit Order, # 2 Exhibit Eden Foods v. Sebelius, # 3 Exhibit Beckwith Electric Articles of Incorporation)(Pollack, Michael) (Entered: 05/28/2013)
25 Emergency MOTION to Expedite Consideration of Preliminary Injunction Motion (Doc. No. 10) and/or Motion to Withdraw Oral Argument by Thomas R. Beckwith, Beckwith Electric Co., Inc.. (Richards, Scott) (Entered: 05/29/2013)
26 ENDORSED ORDER directing Seth D. Harris, Jack Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury to respond to 25 Emergency MOTION to Expedite Consideration of Preliminary Injunction Motion (Doc. No. 10) and/or Motion to Withdraw Oral Argument. The response shall specifically address whether the parties are in agreement as to any of the requested relief, clarifying the Rule 3.01(g) certification in the emergency motion. The response is due by 9:00 a.m. on 5/30/2013. Signed by Judge Elizabeth A. Kovachevich on 5/29/2013. (JPS) (Entered: 05/29/2013)
27 RESPONSE to Motion re 25 Emergency MOTION to Expedite Consideration of Preliminary Injunction Motion (Doc. No. 10) and/or Motion to Withdraw Oral Argument filed by Seth D. Harris, Jack Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pollack, Michael) (Entered: 05/29/2013)
28 MOTION to file amicus brief by The Association of Gospel Rescue Missions, Prison Fellowship Ministries, Association of Christian Schools International, Ethics & Religious Liberty Commission of the Southern Baptist Convention, Institutional Religious Freedom Alliance, Christian Legal Society, The C12 Group. (Gannam, Roger) (Entered: 05/29/2013)

Case: 8:13-cv-648 As of: 11/17/2017 02:08 PM EST 7 of 9

05/29/2013
05/29/2013 05/30/2013 05/31/2013
06/04/2013
06/05/2013 06/06/2013 06/06/2013 06/07/2013
06/17/2013 06/19/2013 06/25/2013 07/11/2013

29 APPEARANCE of non−resident counsel and designation of local counsel by Roger K. Gannam on behalf of Association of Christian Schools International, Christian Legal Society, Ethics & Religious Liberty Commission of the Southern Baptist Convention, Institutional Religious Freedom Alliance, Prison Fellowship Ministries, The Association of Gospel Rescue Missions, The C12 Group. Local Counsel: Roger K. Gannam. Non−Resident Counsel: Kimberlee Wood Colby. (Gannam, Roger) (Entered: 05/29/2013)
30 ORDER granting 16 motion to appear pro hac vice; granting 17 motion to appear pro hac vice. Signed by Magistrate Judge Mark A. Pizzo on 5/29/2013. (DK) (Entered: 05/29/2013)
31 ORDER denying 25 Motion to Expedite. Signed by Judge Elizabeth A. Kovachevich on 5/30/2013. (JPS) (Entered: 05/30/2013)
32 ENDORSED ORDER granting 28 Motion to file amicus brief. The Association of Gospel Rescue Missions, Prison Fellowship Ministries, Association of Christian Schools International, Ethics & Religious Liberty Commission of the Southern Baptist Convention, Institutional Religious Freedom Alliance, Christian Legal Society, and the C12 Group may file a collective amici curiae brief, which shall not exceed fifteen (15) pages, by no later than noon on June 4, 2013. Signed by Judge Elizabeth A. Kovachevich on 5/31/2013. (JPS) (Entered: 05/31/2013)
33 PLAINTIFF'S BRIEF re 32 Order on motion to file amicus brief filed by Association of Christian Schools International, Christian Legal Society, Ethics & Religious Liberty Commission of the Southern Baptist Convention, Institutional Religious Freedom Alliance, Prison Fellowship Ministries, The Association of Gospel Rescue Missions, The C12 Group, National Association of Evangelicals. (Gannam, Roger) (Entered: 06/04/2013)
34 MOTION for leave to file AMICUS MEMORANDUM IN SUPPORT OF PLANTIFFS' MOTION FOR PRELIMINARY INJUNCTION by State of Florida, Office of the Attorney General. (Attachments: # 1 Exhibit MEMORANDUM)(Winship, Blaine) (Entered: 06/05/2013)
35 ENDORSED ORDER granting 34 Motion for Leave to File. The State of Florida, through the Office of the Attorney General, is permitted to file the amicus curiae brief that is attached as Exhibit 1 to the motion. The State of Florida must refile the amicus brief as a separate document. Signed by Judge Elizabeth A. Kovachevich on 6/6/2013. (JPS) (Entered: 06/06/2013)
36 MEMORANDUM in support re 10 Motion for preliminary injunction filed by State of Florida, Office of the Attorney General. (Winship, Blaine) (Entered: 06/06/2013)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Kimberlee Wood Colby, appearing on behalf of Association of Christian Schools International, Christian Legal Society, Ethics & Religious Liberty Commission of the Southern Baptist Convention, Institutional Religious Freedom Alliance, National Association of Evangelicals, Prison Fellowship Ministries, The Association of Gospel Rescue Missions, The C12 Group (Filing fee $10 receipt number TPA017714). (AG) (Entered: 06/07/2013)
37 Minute Entry. Proceedings held before Judge Elizabeth A. Kovachevich: MOTION HEARING held on 6/17/2013 re 10 MOTION for preliminary injunction filed by Beckwith Electric Co., Inc., Thomas R. Beckwith. Court Reporter: Sandra K. Provenzano (CLM) (Entered: 06/17/2013)
38 NOTICE by Thomas R. Beckwith, Beckwith Electric Co., Inc. of Clarification to Record (Pizzo, Paul) (Entered: 06/19/2013)
39 ORDER granting 10 Motion for Preliminary Injunction. The government is enjoined from enforcing the contraceptive mandate consistent with the terms of this order. Plaintiffs are required to post a bond in the amount of $75,000.00. Signed by Judge Elizabeth A. Kovachevich on 6/25/2013. (JPS) (Entered: 06/25/2013)
40 Unopposed MOTION to extend time to Respond to Complaint and Prepare Case Management Report by All Defendants. (Pollack, Michael) (Entered: 07/11/2013)

Case: 8:13-cv-648 As of: 11/17/2017 02:08 PM EST 8 of 9

07/12/2013 07/18/2013 08/22/2013 08/23/2013 08/23/2013 08/26/2013 11/29/2013 05/21/2014 08/12/2014 09/05/2014
01/23/2015
02/09/2015 02/10/2015 02/11/2015 04/09/2015 04/10/2015

41 ENDORSED ORDER granting 40 Motion to extend time. The Case Management Report and response to the Complaint must be served and filed no later than September 2, 2013. Signed by Judge Elizabeth A. Kovachevich on 7/12/2013. (JPS) (Entered: 07/12/2013)
42 Injunction BOND in the amount of $ 75,000.00 posted by Thomas R. Beckwith, Beckwith Electric Co., Inc. (DMS) (Entered: 07/18/2013)
43 NOTICE OF APPEAL as to 39 Order on Motion for Preliminary Injunction by Seth D. Harris, Jack Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pollack, Michael) (Entered: 08/22/2013)
44 TRANSMITTAL of initial appeal package to USCA consisting of copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 43 Notice of appeal. (VCG) (Entered: 08/23/2013)
45 Unopposed MOTION to stay district court proceedings pending appeal by All Defendants. (Pollack, Michael) (Entered: 08/23/2013)
46 ORDER granting 45 motion to stay. This case is stayed until further order of this Court. The Clerk of Court is ordered to administratively close this case. Signed by Judge Elizabeth A. Kovachevich on 8/26/2013. (JPS) (Entered: 08/26/2013)
Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Middle District of Florida certifies that the record is complete for the purposes of this appeal re: 43 Notice of appeal. All documents are imaged and available for the USCA to retrieve electronically. USCA number: 13−13879−AA (VCG) (Entered: 11/29/2013)
47 Notice of substitution of AUSA. Michele Bennett substituting for Michael C. Pollack. (Bennett, Michele) (Entered: 05/21/2014)
48 NOTICE of change of address by Roger K. Gannam (Gannam, Roger) (Entered: 08/12/2014)
49 ORDER of USCA: Motion to dismiss appeal without prejudice filed by Appellants U.S. Department of Labor, U.S. Department of Health and Human Services, Secretary, U.S. Department of the Treasury, U.S. Department of the Treasury, Secretary, U.S. Department of Health and Human Services and Secretary, U.S. Department of Labor is GRANTED as to 43 Notice of appeal filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Seth D. Harris, United States Department of Labor, Jack Lew. EOD: 9/4/14; USCA number: 13−13879−V. (JNB) (Entered: 09/05/2014)
50 ENDORSED ORDER for a status report. The appeal in this case has been dismissed but the case remains administratively closed. The parties have up to and including 2/9/15 to inform the court of what if anything remains to be done in this case and if the case should be taken out of administrative closure and should proceed forward. Signed by Judge Elizabeth A. Kovachevich on 1/23/2015. (SN) (Entered: 01/23/2015)
51 Joint MOTION to Approve Consent Judgment by All Defendants. (Attachments: # 1 Text of Proposed Order)(Bennett, Michele) (Entered: 02/09/2015)
52 ORDER granting 51 Motion to Approve Consent Judgment and for entry of judgment. See order for details. The Clerk of Court is directed to close this case and to terminate any pending motions. Signed by Judge Elizabeth A. Kovachevich on 2/10/2015. (SN) (Entered: 02/10/2015)
53 JUDGMENT in favor of Beckwith Electric Co., Inc., Thomas R. Beckwith against United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Jack Lew, Kathleen Sebelius, Seth D. Harris (Signed by Deputy Clerk) (LD) (Entered: 02/11/2015)
54 STATUS report Joint Status Report by Thomas R. Beckwith, Beckwith Electric Co., Inc.. (Mersino, Erin) (Entered: 04/09/2015)
55 ENDORSED ORDER that the parties have up to and including May 25, 2015 to further negotiate attorneys' fees and costs and to file a joint statement notifying the Court of their progress on that date. If no settlement is reached at that time,

Case: 8:13-cv-648 As of: 11/17/2017 02:08 PM EST 9 of 9

05/22/2015 05/26/2015 06/22/2015 06/23/2015 07/22/2015

then the Plaintiffs may file a motion for attorneys' fees and costs within thirty days of May 25, 2015, pursuant to Federal Rule of Civil Procedure 54. Signed by Judge Elizabeth A. Kovachevich on 4/10/2015. (SN) (Entered: 04/10/2015)
56 STATUS report (Joint) by Kathleen Sebelius, Seth D. Harris, United States Department of the Treasury, United States Department of Health and Human Services, United States Department of Labor, Jack Lew. (Bennett, Michele) (Entered: 05/22/2015)
57 ENDORSED ORDER granting request in docket 56 for an extension up to and including 6/22/15 to allow the parties to attempt to settle the attorney's fee issues or file a motion within 30 days of the 6/22/15 date. Signed by Judge Elizabeth A. Kovachevich on 5/26/2015. (SN) (Entered: 05/26/2015)
58 STATUS report (Joint) by Thomas R. Beckwith, Beckwith Electric Co., Inc.. (Mersino, Erin) (Entered: 06/22/2015)
59 ENDORSED ORDER granting request in 58 Status report filed by Beckwith Electric Co., Inc., Thomas R. Beckwith for extension of time until 7/22/15. Signed by Judge Elizabeth A. Kovachevich on 6/23/2015. (SN) (Entered: 06/23/2015)
60 STATUS report (Joint) by Thomas R. Beckwith, Beckwith Electric Co., Inc.. (Mersino, Erin) (Entered: 07/22/2015)