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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

DOMINO’S FARMS CORPORATION; and THOMAS MONAGHAN, Owner of Domino’s Farms Corporation

Plaintiffs,

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

COMPLAINT [Civil Rights Action under 42 U.S.C. § 1983]

Defendants.

__________________________________________/

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001 __________________________________________/

COMPLAINT

Now come Plaintiffs Domino’s Farms Corporation (hereinafter “Domino’s Farms) and

Thomas Monaghan (collectively “Plaintiffs”), by and through undersigned counsel, and bring

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this Complaint against the above-named Defendants, their employees, agents, and successors in office, and in support thereof state the following upon information and belief:
NATURE OF THE ACTION 1. This is a case about religious freedom. Thomas Jefferson, a Founding Father of our country, principal author of the Declaration of Independence, and our third president, when describing the construct of our Constitution proclaimed, “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Letter from Thomas Jefferson, United States Office of the President, to the Soc’y of the Methodist Episcopal Church at New London, Conn. (Feb. 4, 1809) cited in People v. Dejonge, 442 Mich. 266, 278 (1993) (emphasis added). 2. This is a challenge to regulations ostensibly issued under the “Patient Protection and Affordable Care Act” (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the “Health Care and Education Reconciliation Act” (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (collectively known and hereinafter referred to as the “Affordable Care Act”) that force individuals to violate their deepest held religious beliefs. 3. The Affordable Care Act, through a Mandate from the United States Department of Health and Human Services, attacks and desecrates a foremost tenet of the Catholic Church, as stated by Pope Paul VI in His 1968 encyclical Humanae Vitae, that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception, sterilization, abortion, and abortifacients—is a grave sin. 4. One of the provisions of the Affordable Care Act mandates that health plans “provide coverage for and shall not impose any cost sharing requirements for . . . with respect to
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women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” and directs the Secretary of the United States Department of Health and Human Services to determine what would constitute “preventative care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
5. Without notice of rulemaking or opportunity for public comment, the United States Department of Health and Human Services, the United States Department of Labor, and the United States Department of Treasury adopted the Institute of Medicine (“IOM”) recommendations in full and promulgated an interim final rule (“the Mandate”), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
6. The Mandate requires all insurance issuers (e.g. Blue Cross/Blue Shield of Michigan) to provide contraception, sterilization, abortion, and abortifacients in all of its insurance plans, group and individual.
7. Health Resources and Services Administration also issued guidelines adopting the IOM recommendations. (http://www.hrsa.gov/womensguidelines).
8. Under the IOM guidelines, the Mandate requires all insurance insurers to provide not only contraception, but also abortion, because certain drugs and devices such as the “morning-after pill,” “Plan B,” and “ella” come within the Mandate’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action.
9. The Mandate forces employers and individuals to violate their religious beliefs because it requires employers and individuals to pay for insurance from insurance issuers which
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fund and directly provide for drugs, devices, and services which violate their deeply held religious beliefs.
10. Since under the Mandate all insurance issuers must provide what the United States Department of Health and Human Services has deemed “preventative care,” employers and individuals are stripped of any choice between insurance issuers or insurance plans to avoid violating their religious beliefs.
11. The United States Department of Health and Human Services in an unprecedented despoiling of religious rights forces religious employers and individuals, who believe that funding and providing for contraception, sterilization, abortion, and abortifacients is wrong, to participate in acts that violate their beliefs and their conscience—and are forced out of the health insurance market in its entirety in order to comply with their religious beliefs.
12. Plaintiffs seek a Preliminary Injunction and Permanent Injunction, enjoining Defendants from implementing and enforcing provisions of the regulations promulgated under the Affordable Care Act, specifically the Mandate. The Mandate 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.
13. Plaintiffs also seek a Declaratory Judgment that the regulations promulgated under the Affordable Care Act, specifically the Mandate, violate 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.
14. The Affordable Care Act’s contraception, sterilization, abortion, and abortifacient mandate violates the rights of Plaintiffs Domino’s Farms and its owner, Thomas Monaghan.
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15. Plaintiff Thomas Monaghan is the sole shareholder, director, and owner of Plaintiff Domino’s Farms.
16. Plaintiffs employ over 50 full-time and part-time employees and is subject to monetary penalties under the Affordable Care Act and are forced under the Mandate by penalty of heavy fines to conduct business in a manner that violates their religious faith by providing and funding contraceptives, sterilization, abortion, and abortifacients, which violates deeply held religious beliefs.
17. Plaintiffs bring this action to vindicate not only their own rights, but also to protect the rights of all Americans who care about our Constitutional guarantees of free exercise of religion and their freedom of speech, as well as the protection of innocent human life.
JURISDICTION AND VENUE 18. This action in which the United States is a defendant arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1346. 19. Plaintiffs’ claims for declaratory and preliminary and permanent injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, by 42 U.S.C. § 2000bb-1, and by the general legal and equitable powers of this Court. 20. Venue is proper under 28 U.S.C. § 1391(e) because this is the judicial district in which Plaintiffs are located.
PLAINTIFFS 21. Plaintiff Domino’s Farms is incorporated under the laws of the State of Michigan. 22. Plaintiff Domino’s Farms is registered at 24 Frank Lloyd Wright Drive, Ann Arbor, MI 48105.
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23. Plaintiff Domino’s Farms is treated as a subchapter S corporation for income tax purposes.
24. Plaintiff Domino’s Farms is the property management company for Domino’s Farm Office Park, LLC and DF Land Development, LLC.
25. Domino’s Farms Office Park, LLC is a premier office park, home to over fifty successful corporations, professional firms, non-profits, and entrepreneurial businesses.
26. Domino’s Farms Office Park is 937,203 sq. ft. and Plaintiff Domino’s Farms provides numerous first class services and amenities throughout.
27. Some of the amenities and services Plaintiff Domino’s Farms offers to its tenants, include an on-site Catholic chapel, dining and catering, a bistro, a fitness center, and Catholic bookstore.
28. The on-site chapel offers Mass four times daily and twenty three times a week. 29. Plaintiff Domino’s Farms state-of-the-art fitness center is free of charge for all Domino’s Farms employees and tenants. The fitness center advances preventative medicine and public health. 30. Plaintiff Domino’s Farms food services offer healthy menu options, as well as providing Catholic menu options such as fish during the Fridays of lent. 31. Plaintiff Domino’s Farms also offers several in-house services, including on-site property maintenance, a twenty-four hour work order request system, twenty-four hour security, telephone and data/internet services, maintenance and housekeeping, office suite build-outs and enhancements, and secure loading and storage. 32. Plaintiff Domino’s Farms employs 45 full-time employees. Plaintiff Domino’s Farms also employs 44 part-time employees, with regular part-time employees working
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approximately 28,800 hours per year and with temporary part-time employees working approximately 10,000 hours per year.
33. Plaintiff Thomas Monaghan, the owner, sole shareholder, and sole director of Plaintiff Domino’s Farms, is an individual and a citizen of the State of Florida and the United States.
34. Plaintiff Thomas Monaghan is Pro-life. 35. Plaintiff Thomas Monaghan has devoted his life and resources to Catholic philanthropic causes. 36. Plaintiff Thomas Monaghan is a Catholic and follows the teachings of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church. 37. Plaintiff Thomas Monaghan is guided by his religious beliefs. 38. Plaintiff Thomas Monaghan created The Ave Maria Foundation, to promote and spread Catholic education, Catholic media, community projects, and other Catholic charities. 39. Plaintiff Thomas Monaghan founded both a Catholic university, Ave Maria University, and law school, Ave Maria School of Law. 40. Plaintiff Thomas Monaghan founded Legatus in 1987 to bring together the three key areas of a Catholic business leader’s life – Faith, Family and Business. 41. Legatus is the Latin word for “ambassador”, and its members are called upon to become “ambassadors for Christ” in living and sharing their Catholic Faith in their business, professional and personal lives. (http://www.legatus.org/). 42. Legatus “is an international organization of practicing Catholic laymen and laywomen, comprised of Chief Executive Officers, Presidents, Managing Partners and Business
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Owners, with their spouses, from the business community and professional enterprises.” Legatus Amended and Restated International Bylaws § 2.1.
43. Legatus is comprised of over 4,000 members, including 2,124 dues paying members and their member spouses and has a total of 73 chapters in the United States located in 31 states with 3 international chapters.
44. Legatus, its employees, and its members work to follow the teachings of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church, and carry and live out their religious beliefs daily by helping and assisting their members follow the teachings of the Catholic Church and strengthen their faith.
45. The members of Legatus share religious beliefs that prevent them from participating in, paying for, training others to engage in, or otherwise supporting contraception, abortion, and abortifacients.
46. Furthermore, Legatus provides education to its members pertaining to the teachings and tenets of the Catholic Faith.
47. Plaintiff Thomas Monaghan is a member of the Catholic Advisory Board of the Ave Maria Mutual Funds which gives guidance to the Fund to help ensure that the Fund does not invest in any companies that violate principles of the Catholic Church.
48. Plaintiff Thomas Monaghan holds religious beliefs that prevent him from participating in, paying for, training others to engage in, or otherwise supporting contraception, sterilization, abortion, and abortifacients.
49. Plaintiff Thomas Monaghan follows the tenets of the Catholic faith in his business practices.
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50. Prior to the issuance of the Mandate, Plaintiffs engineered an insurance policy with Blue Cross/Blue Shield of Michigan and through The Ave Maria Foundation located in Ann Arbor, Michigan which specifically excluded contraception, sterilization, abortion, and abortifacients, and exempts Plaintiffs from paying, contributing, or supporting contraception and abortion for others.
51. Plaintiffs obtained these exclusions due to their deeply held religious beliefs. 52. Plaintiff Domino’s Farms has never offered insurance which included coverage for contraception, sterilization, abortion, and abortifacients. 53. Plaintiffs’ employees receive insurance under this engineered insurance policy with Blue Cross/Blue Shield of Michigan which specifically excludes contraception, sterilization, abortion, and abortifacients, and exempts Plaintiffs from paying, contributing, or supporting contraception, sterilization, and abortion for others. 54. Plaintiff Thomas Monaghan is the final decision maker when it comes to setting all policies governing the conduct of all phases of business of Domino’s Farms. 55. Plaintiff Thomas Monaghan and his company Plaintiff Domino’s Farms ensured that their insurance policy contained these exclusions to reflect their deeply held religious beliefs. 56. Based on the teachings of the Catholic Church, and their deeply held religious beliefs, Plaintiffs do not believe that contraception, sterilization, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well being of persons. Indeed, Plaintiffs believe these procedures involve gravely immoral practices, specifically the intentional destruction of innocent human life.
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DEFENDANTS 57. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 58. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Defendant Sebelius is sued in her official capacity only. 59. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit. 60. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she holds responsibility for the operation and management of the United States Department of Labor. Defendant Solis is sued in her official capacity only. 61. Defendant United States Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit. 62. Defendant Timothy Geithner is the Secretary of the United States Department of the Treasury. In this capacity, he holds responsibility for the operation and management of the United States Department of Treasury. Defendant Geithner is sued in his official capacity only. 63. Defendant United States Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
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FACTUAL ALLEGATIONS Plaintiffs’ Religious Beliefs
64. Plaintiffs hold and actively profess religious beliefs in accordance with the traditional Christian teachings on the sanctity of life. Plaintiffs believe that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. Plaintiffs therefore believe that abortion ends a human life and is a grave sin.
65. Plaintiffs’ religious beliefs also include traditional Christian teaching on the nature and purpose of human sexuality. In particular, Plaintiffs believe, in accordance with Pope Paul VI’s 1968 encyclical Humanae Vitae, that human sexuality has two primary purposes: to “most closely unit[e] husband and wife” and “for the generation of new lives.” Accordingly, Plaintiffs believe and actively profess, with the Catholic Church, that “[t]o use this divine gift destroying, even if only partially, its meaning and its purpose is to contradict the nature both of man and of woman and of their most intimate relationship, and therefore it is to contradict also the plan of God and His Will.” Therefore, Plaintiffs believe and teach that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception and sterilization—is a grave sin.
66. Furthermore, Plaintiffs subscribe to authoritative Catholic teaching about the proper nature and aims of health care and medical treatment. For instance, Plaintiffs believe, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.”
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67. Recently, several leaders within the Catholic Church have publicly spoken out about how the Mandate is a direct violation of Catholic Faith.
68. Cardinal Timothy Dolan, Archbishop of New York and President of the United States Conference of Catholic Bishops wrote, “Since January 20 [2012], when the final, restrictive HHS Rule was first announced, we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it. We recall the words of our Holy Father Benedict XVI to our brother bishops on their recent ad limina visit: ‘Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion.’ . . . We have made it clear in no uncertain terms to the government that we are not at peace with its invasive attempt to curtail the religious freedom we cherish as Catholics and Americans.” (http://www.usccb.org., March 2, 2012).
69. Archbishop Charles J. Chaput, the Archbishop of Philadelphia, has expressed that the Affordable Care Act and the Mandate seek “to coerce Catholic employers, private and corporate, to violate their religious convictions . . . [t]he HHS mandate, including its latest variant, is belligerent, unnecessary, and deeply offensive to the content of Catholic belief . . . The HHS mandate needs to be rescinded. In reality, no similarly aggressive attack on religious freedom in our country has occurred in recent memory . . . [t]he HHS mandate is bad law; and not merely bad, but dangerous and insulting. It needs to be withdrawn—now.” (http://theamerican-catholic.com/2012/02/14/archbishop-chaput-hhs-mandate-dangerous-and-insulting/, Feb. 14, 2012). Plaintiffs Domino’s Farms and Thomas Monaghan, Owner of Domino’s Farms
70. Plaintiff Domino’s Farms is a for-profit company.
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71. Plaintiff Thomas Monaghan and Plaintiff Domino’s Farms share a common mission of conducting their business operations with integrity and in compliance with the teachings, mission, and values of the Catholic Church.
72. Plaintiff Thomas Monaghan and Plaintiff Domino’s Farms purchase group insurance through insurance issuer Blue Cross/Blue Shield of Michigan and provide this insurance to their employees.
73. Plaintiff Thomas Monaghan and Plaintiff Domino’s Farms strive to provide their employees with employee health coverage superior to coverage generally available in the Michigan market in order to be a competitive employer.
74. Plaintiff Thomas Monaghan and Plaintiff Domino’s Farms specifically designed a health insurance plan with Blue Cross/Blue Shield of Michigan to exclude contraception, sterilization, abortion, and abortifacients in line with the religious beliefs of the Catholic faith.
75. Moreover, as a part of his religious commitment to the authoritative teachings of the Catholic Church, Plaintiff Thomas Monaghan is called to educate others about the teachings of the Catholic Church and steadfastly avoids practices that subvert the teaching of the Catholic Church such as providing or funding drugs, devices, services or procedures inconsistent with his Catholic faith.
76. Plaintiff Thomas Monaghan and Plaintiff Domino’s Farms cannot provide, fund, or participate in health care insurance which covers artificial contraception, sterilization, abortion, or abortifacients, or related education and counseling, without violating their deeply held religious beliefs.
77. Plaintiff Thomas Monaghan and Plaintiff Domino’s Farms cannot provide information or guidance to their employees regarding artificial contraception, sterilization,
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abortion, abortifacients or related education and counseling, without violating their deeply held religious beliefs.
78. With full knowledge of these aforementioned beliefs, Defendants issued an administrative rule (“the Mandate”) that runs roughshod over Plaintiffs’ religious beliefs, and the beliefs of millions of other Americans.
79. The Mandate not only forces Plaintiffs to finance contraception, sterilization, abortion, and related education and counseling as health care, but also subverts the expression of Plaintiffs’ religious beliefs, and the beliefs of millions of other Americans, by forcing Plaintiffs to fund, promote, and assist others to acquire services which Plaintiffs believe involve gravely immoral practices, including the destruction of innocent human life.
80. The Mandate unconstitutionally coerces Plaintiffs to violate their deeply-held religious beliefs under threat of directly violating their consciences, in addition to any imposed fines and penalties. The Mandate also forces Plaintiffs to fund government-dictated speech that is directly at odds with their own speech and religious beliefs. Having to pay a fine to the taxing authorities or being entirely forced out of the insurance market in order to ensure the privilege of practicing one’s religion or controlling one’s own speech substantially burdens Plaintiffs’ religious liberty and freedom of speech under the First Amendment.
81. The Mandate strips the Plaintiffs of any choice to select an insurance plan that does not cover and finance contraception, sterilization, abortion, and abortifacients, as the Mandate requires that all insurance issuers provide this coverage.
82. Plaintiffs’ plan is not considered “grandfathered” and will be subject to the provisions of the Mandate.
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83. Blue Cross/Blue Shield of Michigan deemed that due to the Mandate, Plaintiffs will no longer be allowed to exclude contraception, sterilization, abortion, and abortifacients from their insurance plans—and will be forced to provide and pay for these services which violate their religious beliefs.
84. Plaintiffs wish to conduct their business in a manner that does not violate the principles of their religious faith.
85. Complying with the Mandate requires a direct violation of the Plaintiffs’ religious beliefs because it would require Plaintiffs to pay for and assist others in paying for or obtaining not only contraception, but also abortion, because certain drugs and devices such as the “morning-after pill,” “Plan B,” and “ella” come within the Mandate’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action.
86. Defendants’ refusal to accommodate the conscience of the Plaintiffs, and of other Americans who share the Plaintiffs’ religious views, is highly selective. Numerous exemptions exist in the Affordable Care Act which appear arbitrary and were granted to employers who purchase group insurance. This evidences that Defendants do not mandate that all insurance plans need to cover “preventative services” (e.g. the thousands of waivers from the Affordable Care Act issued by Defendants for group insurance based upon the commercial convenience of large corporations, the age of the insurance plan, or the size of the employer).
87. Despite granting waivers upon a seemingly arbitrary basis, no exemption exists for an employer or individual whose religious conscience instructs him that certain mandated services are unethical, immoral, and volatile to one’s religious beliefs. Defendants’ plan fails to
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give the same level of weight or accommodation to the exercise of one’s fundamental First Amendment freedoms that it assigns to the yearly earnings of a corporation.
88. The Defendants’ actions violate Plaintiffs’ right to freedom of religion, as secured by the First Amendment to the United States Constitution and civil rights statutes, including the Religious Freedom Restoration Act (RFRA).
89. The Defendants’ actions also violate Plaintiffs’ right to the freedom of speech, as secured by the First Amendment to the United States Constitution.
90. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
91. Had Plaintiffs’ religious beliefs, or the beliefs of the millions of other Americans who share Plaintiffs’ religious beliefs been obscure or unknown, the Defendants’ actions might have been an accident. But because the Defendants acted with full knowledge of those beliefs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than a deliberate attack by the Defendants on the Catholic Church, the religious beliefs held by Plaintiffs and the similar religious beliefs held by millions of other Americans. The Defendants have, in sum, intentionally used government power to force individuals to believe in, support, and endorse the mandated services manifestly contrary to their own religious convictions, and then to act on that coerced belief, support, or endorsement. Plaintiffs seek declaratory and injunctive relief to protect against this attack.
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The Affordable Care Act 92. In March 2010, Congress passed, and President Obama signed into law, the
“Patient Protection and Affordable Care Act” (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the “Health Care and Education Reconciliation Act” (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (referred to in this complaint as the “Affordable Care Act”).
93. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
94. The Affordable Care Act does not apply equally to all insurers. 95. The Affordable Care Act does not apply equally to all individuals. 96. The Affordable Care Act requires employers with more than 50 full-time employees or full-time employee equivalents to provide federal government-approved health insurance or pay a substantial per-employee fine. (26 U.S.C. § 4980H). 97. Plaintiff Domino’s Farms employs over 50 full-time employees or full-time equivalents. 98. Plaintiff Domino’s Farms constitutes a “single employer” for purposes of the Affordable Care Act as defined at 42 U.S.C. § 18024(b)(4)(A). 99. Plaintiff Domino’s Farms, as well as Plaintiff Thomas Monaghan as the owner and director of Domino’s Farms must provide federal government-approved health insurance under the Affordable Care Act or pay substantial per-employee fines. 100. The Affordable Care Act purports to not apply to the failure to offer employersponsored insurance to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A).
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101. However, even employees with fewer than 50 employees purchase insurance from health insurance issuers, who are subject to the Affordable Care Act. 42 USC § 300GG-13 (a)(1),(4).
102. Certain provisions of the Affordable Care Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(B)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria).
103. Plaintiffs do not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii) as Plaintiffs do not object to acceptance of public or private insurance funds in their totality and currently enjoy health insurance benefits that exclude contraceptives, sterilization, abortion, and abortifacients.
104. The Affordable Care Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans.
105. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
106. Plaintiffs’ current insurance plans do not qualify as “grandfathered” health care plans, and are considered “non-grandfathered.”
107. Furthermore, Plaintiffs do not qualify for the “religious employer” exemption contained in 45 CFR § 147.130 (a)(1)(A) and (B).
108. There have been changes made to Plaintiffs’ plan after 2010, and participants have never been notified of a “grandfathered” status.
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109. Furthermore Plaintiffs are not eligible for “grandfathered” status under the Affordable Care Act and will be subject to the requirements of the Affordable Care Act and the Health and Human Services Mandate because: (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 does 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.
110. Since the Plaintiffs do not qualify for the “religious employer” exemption, they are not permitted to take advantage of the “temporary safe-harbor” as set forth by the Defendants at 77 Fed. Register 8725 (Feb. 15, 2012).
111. Plaintiffs are thus subjected to the Mandate now and are confronted with choosing between complying with its requirements in violation of their religious beliefs or violating federal law.
112. Plaintiff Domino’s Farms and Plaintiff Thomas Monaghan must choose between complying with the requirements of the Affordable Care Act in violation of their religious beliefs or either paying ruinous fines that would have a crippling impact on their ability to survive economically.
113. Plaintiffs are collectively confronted with complying with the requirements of the Affordable Care Act in violation of their religious beliefs or removing themselves and employees from the health insurance market in its entirety—endangering the health and economic stability of their employees and forcing Plaintiff Domino’s Farms to be non-competitive as employers in
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a market where other, non-Catholic employers will be able to provide insurance to their employees under the Affordable Care Act without violating their religious beliefs.
114. The Affordable Care Act is not generally applicable because it provides for numerous exemptions from its rules.
115. The Affordable Care Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not. Some groups, both secular and religious, have received waivers from complying with the provisions of the Affordable Care Act, while others—such as the Plaintiffs—have not.
116. The Affordable Care Act creates a system of individualized exemptions. 117. The United States Department of Health and Human Services has the authority under the Affordable Care Act to grant compliance waivers (“HHS waivers”) to employers and other health insurance plan issuers. 118. HHS waivers release employers and other plan issuers from complying with the provisions of the Affordable Care Act. 119. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers. 120. Upon information and belief, more than a thousand HHS waivers have been granted. 121. The Affordable Care Act, and inescapably the Mandate, penalizes noncompliance—with a minimum fine of $2,000 per employee per year and IRS penalties. See 26 U.S.C. §§ 4980D & 4980H and 29 U.S.C. § 1132. The “Preventive Care” Mandate 122. A provision of the Affordable Care Act mandates that health plans “provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women,
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such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” and directs the Secretary of United States Department of Health and Human Services to determine what would constitute “preventative care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
123. On July 19, 2010, HHS, along with the United States Department of Treasury and the United States Department of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726 (2010). The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
124. On February 15, 2012, the United States Department of Health and Human Services promulgated a mandate that group health plans include coverage for all Food and Drug Administration-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 (hereafter, “the Mandate”). See 45 CFR § 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).
125. The Mandate was enacted pursuant to statutory authority under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, as amended by the Health Care and Education Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (ACA). 77 Fed. Reg. 31, 8725 (“Affordable Care Act”).
126. In its ruling, HHS included all FDA-approved contraceptives under the banner of preventive services, including contraception, abortion, and abortifacients such as the “morning-
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after pill,” “Plan B,” and “ella,” a close cousin of the abortion pill RU-486. (http://www.hrsa.gov/womensguidelines).
127. The Mandate’s reach seeks to control the decisions of employers, individuals and also the decisions of all insurance issuers (i.e. “Blue Cross/Blue Shield of Michigan,” etc.). 42 USC § 300gg-13 (a)(1),(4). (“A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force; . . . with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.”).
128. All insurance issuers are mandated to include contraception, sterilization, abortion, and abortifacients such as the “morning-after pill,” “Plan B,” and “ella” in all of its group and individual plans, not specifically exempted, beginning as of August 1, 2012 and effective on the anniversary of the employer’s plan year.
129. Individuals and employers, regardless of the number of employees they employ, will eventually be forced to select an insurance plan which includes what HHS deemed “preventative care.”
130. All individuals and employers will be stripped of their choice not to pay for the “preventative care,” regardless of whether paying for such “services” violates one’s conscience or deeply held religious beliefs.
131. Health insurance issuers include insurance companies such as Blue Cross/Blue Shield of Michigan, which is the insurance issuer used by Plaintiffs.
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132. The Mandate reaches even further than the Affordable Care Act to eliminate all

employers and individuals from selecting a health insurance plan in which the insurance issuers

do not automatically provide contraception, sterilization, abortion, and abortifacients.

133. Prior to promulgating the Mandate, HHS accepted public comments to the 2010

interim final regulations from July 19, 2010 to September 17, 2010. Upon information and

belief, a large number of groups filed comments, warning of the potential conscience

implications of requiring religious individuals and groups to pay for certain kinds of services,

including contraception, sterilization, abortion, and abortifacients.

134. HHS directed a private health policy organization, the Institute of Medicine

(“IOM”), to suggest a list of recommended guidelines describing which drugs, procedures, and

services should be covered by all health plans as preventative care for women.

(http://www.hrsa.gov/womensguidelines).

135. In developing its guidelines, IOM invited a select number of groups to make

presentations on the preventive care that should be mandated by all health plans. These were the

Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John

Santelli, the National Women’s Law Center, National Women’s Health Network, Planned

Parenthood

Federation

of

America

and

Sara

Rosenbaum.

(http://www.nap.edu/openbook.php?record_id=13181&PAGE=217).

136. No religious groups or other groups that oppose government-mandated coverage

of contraception, sterilization, abortion, and related education and counseling were among the

invited presenters.

137. One year after the first interim final rule was published, on July 19, 2011, the

IOM published its recommendations. It recommended that the preventative services include “All

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Food and Drug Administration approved contraceptive methods.” (Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011)).
138. Preventative services therefore include FDA-approved contraceptive methods such as birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; and ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures.
139. Plan B and “ella” can prevent the implantation of a human embryo in the wall of the uterus and can cause the death of an embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each constitute an “abortion” as that term is used in federal law and Catholic teaching. Consequently, Plan B and “ella” are abortifacients.
140. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the United States Department of Labor, and the United States Department of Treasury adopted the IOM recommendations in full and promulgated an interim final rule (“the Mandate”), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDAapproved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. Health Resources and Services Administration issued guidelines adopting the IOM recommendations. (http://www.hrsa.gov/womensguidelines).
141. The Mandate also requires group health care plans and insurance issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
142. The Mandate went into effect immediately as an “interim final rule.”
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143. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued.
144. Instead the Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations.
145. When it issued the Mandate, HHS requested comments from the public by September 30th and indicated that comments would be available online.
146. Upon information and belief, over 100,000 comments were submitted against the Mandate.
147. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.” She did not state whom she and NARAL Pro-Choice America were warring against.
148. During a Congressional hearing on April 26, 2012, Defendant Sebelius admitted that she is totally unfamiliar with the United States Supreme Court religious freedom cases.
149. Defendant Sebelius showed little concern for the constitutional issues involved in promulgating the Mandate. At the aforementioned congressional hearing, she admitted that prior to issuing the Mandate she did not review any written materials or any sort of legal memo from her general counsel discussing the effects of the Mandate on religious freedom.
150. The Mandate fails to take into account the statutory and constitutional conscience rights of religious business owners and for profit companies that exercise business practices in compliance with certain faith practices, such as Plaintiff Thomas Monaghan’s company Plaintiff Domino’s Farms, a subject of comment.
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151. The Mandate requires that Plaintiffs assist, provide, or fund coverage for contraception, sterilization, abortion, abortifacients, and related education and counseling against its conscience in a manner that is contrary to law.
152. The Mandate constitutes government-imposed pressure and coercion on Plaintiffs to change or violate their religious beliefs.
153. The Mandate exposes Plaintiff Domino’s Farms and Plaintiff Thomas Monaghan, as individuals and as employers or companies with over 50 full-time employees, to substantial fines for refusal to change or violate their religious beliefs.
154. The Mandate imposes a burden on Plaintiffs’ employee recruitment efforts by creating uncertainty as to whether Plaintiffs will be able to offer health insurance beyond the beginning of their next plan year on January 1, 2013.
155. The Mandate places Plaintiffs at a competitive disadvantage in their efforts to recruit and retain employees and members.
156. Furthermore as a Christian, his religious beliefs and the principle of stewardship require that Plaintiff Thomas Monaghan care for his employees by providing insurance coverage for them and their families.
157. The Mandate forces Plaintiffs to provide, fund, or approve and assist its employees and members in purchasing contraception and abortifacient drugs in violation of Plaintiffs’ religious beliefs that doing so is gravely immoral and, in certain cases, equivalent to assisting another to destroy innocent human life.
158. Plaintiffs have a sincere religious objection to providing coverage for emergency contraceptive drugs such as Plan B and “ella” since they believe those drugs could prevent a
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human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of a person.
159. Plaintiffs consider the prevention by artificial means of the implantation of a human embryo to be an abortion.
160. Plaintiffs believe that Plan B and “ella” can cause the death of the embryo, which is a person.
161. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 162. “Ella” can prevent the implantation of a human embryo in the wall of the uterus. 163. Plan B and “ella” can cause the death of the embryo. 164. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law. 165. The use of artificial means to cause the death of a human embryo constitutes an “abortion” as that term is used in federal law. 166. The Mandate forces Plaintiffs to provide emergency contraception, including Plan B and “ella,” free of charge, regardless of the ability of insured persons to obtain these drugs from other sources. 167. The Mandate forces Plaintiffs to fund education and counseling concerning contraception, sterilization, and abortion that directly conflicts with Plaintiffs’ religious beliefs and teachings. 168. Plaintiffs could not cease in providing its employees with health insurance coverage without violating its religious duty to provide for the health and well-being of its employees and their families. Additionally, employees would be unable to attain similar coverage in the market as it now exists.
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169. The Mandate forces Plaintiffs to choose between violating their religious beliefs, incurring substantial fines, or terminating their employee or individual health insurance coverage.
170. Providing counseling and education about contraceptives, sterilization, and abortion directly undermines and subverts the explicit messages and speech of Plaintiffs.
171. Group health plans and insurance issuers have been subject to the Mandate as of August 1, 2012.
172. Plaintiffs plan year begins on January 1, 2013—and will be subject to the Mandate as of that date without Court intervention.
173. Plaintiffs have already had to devote significant institutional resources, including both staff time and funds, to determine how to respond to the Mandate. Plaintiffs anticipate continuing to make such expenditures of time and money up until and after the time that the Mandate goes into effect for the Plaintiffs’ plan. The Narrow and Discretionary Religious Exemption
174. The Mandate indicates that the Health Resources and Services Administration (“HRSA”) “may” grant religious exemptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A).
175. The Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section
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6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
176. The Mandate imposes no constraint on HRSA’s discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate’s definition of “religious employers.”
177. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
178. There is no exemption for a for-profit company. 179. Plaintiffs reasonably expect, as confirmed by their respective insurance issuers, that they will be subject to the Mandate despite the existence of exemptions to the Mandate as none of the exemptions apply to Plaintiffs. 180. On January 20, 2012, Defendant Sebelius announced that there would be no change to the religious exemption. She added that “[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,” on the condition that those employers certify they qualify for the extension. At the same time, however, Sebelius 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 incomebased support.” See Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, (http://www.hhs.gov/news/press/2012pres/01/20120120a.html). To date, Defendant HHS has not released any official rule implementing either the one-year extension or the additional forced-speech requirement that applies to either Plaintiff.
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181. It is inevitable with the current state of the law that Plaintiffs will have to comply with the Mandate, despite the fact that Plaintiffs will violate the teachings of their religious beliefs and the teachings of their Catholic faith by directly providing, funding, and/or allowing its members to engage in disseminating information and guidance about where to obtain contraception, sterilization, abortion, or abortifacient services.
CLAIMS COUNT I Violation of the First Amendment to the United States Constitution Free Exercise Clause 182. Plaintiffs incorporate by reference all preceding paragraphs. 183. Plaintiffs’ sincerely held religious beliefs prohibit it from providing coverage for contraception, sterilization, abortion, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 184. Neither the Affordable Care Act nor the Mandate is neutral. 185. Neither the Affordable Care Act nor the Mandate is generally applicable. 186. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 187. The Mandate furthers no compelling governmental interest. 188. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 189. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs. 190. The Mandate chills Plaintiffs’ religious exercise.
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191. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance.
192. The Mandate exposes Plaintiffs to substantial fines for their religious exercise. 193. The Mandate exposes Plaintiffs to monetary and health risks as they will no longer be able to accept health insurance, nor be able to purchase or provide health care insurance without violating their religious beliefs. 194. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise. 195. The Mandate is not narrowly tailored to any compelling governmental interest. 196. The Mandate and Defendants’ threatened enforcement of the Mandate violate Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution. 197. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause 198. Plaintiffs incorporate by reference all preceding paragraphs. 199. Plaintiffs’ sincerely held religious beliefs prohibit them from purchasing or providing coverage for contraception, sterilization, abortion, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 200. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Plaintiffs to comply with their religious beliefs.
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201. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of Plaintiffs and others.
202. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution.
203. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause 204. Plaintiffs incorporate by reference all preceding paragraphs. 205. By design, Defendants imposed the Mandate on some religious organizations or religious individuals but not on others, resulting in discrimination among religions. 206. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 207. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no religious individuals. 208. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiffs’ rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 209. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
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COUNT IV Violation of the First Amendment to the United States Constitution
Establishment Clause 210. Plaintiffs incorporate by reference all preceding paragraphs. 211. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on Plaintiffs. 212. Defendants also imposed the Mandate on some religious individuals and religious organizations but not on others, resulting in a selective burden on Plaintiffs. 213. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 214. The Mandate also vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no individuals. 215. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violates Plaintiffs’ rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution. 216. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Freedom of Speech 217. Plaintiffs incorporate by reference all preceding paragraphs. 218. Plaintiffs profess, educate, lecture, and engage in outreach amongst the community that contraception, sterilization, abortion, and abortifacients violate their religious beliefs.
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219. The Mandate would compel Plaintiffs to provide or subsidize activities that Plaintiffs profess, educate, lecture, and engage in outreach amongst the community are violations of the Plaintiffs’ religious beliefs.
220. The Mandate would compel Plaintiffs to fund and to provide education and counseling related to contraception, sterilization, abortion, and abortifacients.
221. Defendants’ actions thus violate Plaintiffs’ right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution.
222. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest.
223. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VI Violation of the First Amendment to the United States Constitution
Expressive Association 224. Plaintiffs incorporate by reference all preceding paragraphs. 225. Plaintiffs profess, educate, and engage in outreach amongst the community that contraception, sterilization, abortion, and abortifacients violate their religious beliefs. 226. The Mandate would compel Plaintiffs to subsidize activities that Plaintiffs profess, educate, and engage in outreach in the community are violations of Plaintiffs’ religious beliefs. 227. The Mandate would compel Plaintiffs to fund and to provide education and counseling related to contraception, sterilization, abortion, and abortifacients. 228. Defendants’ actions thus violate Plaintiffs’ right of expressive association as secured to it by the First Amendment of the United States Constitution.
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229. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VII Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech 230. Plaintiffs incorporate by reference all preceding paragraphs. 231. By stating that HRSA “may” grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations or individuals can have its First Amendment interests accommodated. 232. The Mandate furthermore seems to have completely failed to address the constitutional and statutory implications of the Mandate on for-profit employers such as Plaintiff Domino’s Farms and Plaintiff Thomas Monaghan. As such, Plaintiff Domino’s Farms and Plaintiff Thomas Monaghan are subject to the unbridled discretion of HRSA to determine whether such companies would be exempt or are wholly left without relief from the Mandate. 233. Defendants’ actions violate Plaintiffs’ right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution. 234. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VIII Violation of the Religious Freedom Restoration Act 235. Plaintiffs incorporate by reference all preceding paragraphs. 236. Plaintiffs’ sincerely held religious beliefs prohibit it from providing or purchasing coverage for contraception, sterilization, abortion, abortifacients, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise.
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237. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs.
238. The Mandate chills Plaintiffs’ religious exercise. 239. The Mandate exposes Plaintiffs to substantial fines for their religious exercise. 240. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that it will no longer be permitted to offer or purchase health insurance. 241. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise. 242. The Mandate furthers no compelling governmental interest. 243. The Mandate is not narrowly tailored to any compelling governmental interest. 244. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 245. The Mandate and Defendants’ threatened enforcement of the Mandate violate Plaintiffs’ rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 246. Absent injunctive and declaratory relief against the Defendants, Plaintiffs have been and will continue to be harmed.
COUNT IX Violation of the Administrative Procedure Act 247. Plaintiffs incorporate by reference all preceding paragraphs. 248. Defendants’ stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute “good cause.” 249. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful
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“consideration of the relevant matter presented.” Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule.
250. Therefore, Defendants have taken agency action not in observance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
251. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT X Violation of the Administrative Procedure Act 252. Plaintiffs incorporate by reference all preceding paragraphs. 253. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on Plaintiffs and similar organizations, companies, and individuals. 254. Defendants’ explanation for its decision not to exempt Plaintiffs and similar companies and religious individuals from the Mandate runs counter to the evidence submitted by religious organizations during the comment period. 255. Thus, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them. 256. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XI Violation of the Administrative Procedure Act 257. Plaintiffs incorporate by reference all preceding paragraphs.
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258. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (September 30, 2008).
259. The Weldon Amendment provides that “[n]one of the funds made available in this Act [making appropriations for Defendants United States Department of Labor and United States Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
260. The Mandate requires issuers, employers, and individuals, including Plaintiffs, to provide and purchase coverage of all Federal Drug Administration-approved contraceptives.
261. Some FDA-approved contraceptives cause abortions. 262. As set forth above, the Mandate violates RFRA and the First Amendment. 263. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 264. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act 265. Plaintiffs incorporate by reference all preceding paragraphs. 266. The Mandate is contrary to the provisions of the Affordable Care Act. 267. Section 1303(a)(1)(A)(i) of the Affordable Care Act states that “nothing in this title”—i.e., title I of the Act, which includes the provision dealing with “preventive services”—
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“shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.”
268. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services.
269. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does.
270. However, the Mandate requires all issuers, including Plaintiffs and Plaintiffs’ insurance issuer Blue Cross/Blue Shield of Michigan, to provide coverage of all Federal Drug Administration-approved contraceptives.
271. Some FDA-approved contraceptives cause abortions. 272. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 273. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, Plaintiffs request that the Court: a. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiffs violates the First Amendment to the United States Constitution; b. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiffs violates the Religious Freedom Restoration Act; c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
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d. Issue both a preliminary and a permanent injunction prohibiting and enjoining Defendants from enforcing the Mandate against Plaintiffs and other religious individuals, employers, and companies that object to funding and providing insurance coverage for contraceptives, sterilization, abortion, abortifacients, and related education and counseling;
e. Award Plaintiffs the costs of this action and reasonable attorney’s fees; and f. Award such other and further relief as it deems equitable and just.
Respectfully submitted, 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 Fax (734) 930-7160 emersino@thomasmore.org Counsel for Plaintiffs
40

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS MONAGHAN, and DOMINO’S FARMS CORP.,
Plaintiffs,

Case No. 12-15488 Hon. Lawrence P. Zatkoff

v.

KATHLEEN SEBELIUS, et al,

Defendants. _______________________________________/

OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse, in the City of Port Huron, State of Michigan, on December 30, 2012.

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION This matter is bef ore the Court on Pla intiffs’ Emergency Motion for a Temporary Restraining

Order [dkt 8]. The Government filed a response [dkt 12]. The Court finds that the f acts and legal

arguments are adequately presented in the parties’ papers such that the decision process would not be

significantly aided by ora l argument. Therefore, pursuant to E.D. Mi ch. L.R. 7.1( f)(2), it is hereb y

ORDERED that the M otion be resolved on the brief s submitted, without oral ar gument. F or the

following reasons, Plaintiffs’ Motion is GRANTED.

II. BACKGROUND

Plaintiff Thomas Monaghan (“ Monaghan”) is t he owner and sole shareholder of Pl aintiff

Domino’s Farms Corp., (“DF”) a secular, for-profit property management company. On D ecember 14,

2012, Plaintiffs filed a c omplaint for declaratory judgment an d injunctive relief regarding whether they

must comply with the Preventive Health Services coverage provision (“mandate”) in the Women’s Health

Amendment, 42 U.S.C. § 300 gg–13(a)(4), to the Pa tient Protection and Affordable Care Act of 2010,

(“the ACA”), Pub. L. No. 1 11–148, 124 Stat. 119 (Mar. 23, 2010), as a mended by the He ath Care and

Education Reconciliation Act, Publ. L. No. 1 11–152, 124 Stat. 1029 (Mar . 30 2010). The named

Defendants are the three federal government agencies charged with implementing and administering the

mandate and the individuals heading these agencies: the Department of Health and Human Services and

Secretary Kathleen Sebelius; the Department of the Treasury and Secretary Timothy F. Geithner; and the

Department of Labor and Secretary Hilda L. Solis.

The ACA “aims to increase the number of Americans covered by health ins urance and decrease

the cost of health care.” Nat’l Fed’n. of Indep. Bus. v . Sebelius, 132 S. Ct. 2566, 2580 (2012). In

deciding to i nclude a contraception coverage mandat e, Congress found that: (1) the use of pre ventive

services, including contraception, results in a healt hier population and reduces health ca re costs ( for

reasons related and unrel ated to pregnancy); and ( 2) access to contraception i mproves the social and

economic status of women. See 77 Fed. Reg. 8725, 8727–8728 (Feb. 15, 2012).

According to the c ontraception coverage mandate, commencing in plan years af ter August 1,

2012, and unless “grandfa thered” or otherwise exempt, employee group health benefit plans and health

insurance issuers must include covera ge, without cost sharing, for all FDA approved contraceptive

methods, sterilization procedures, and patient education and counseling for all women with reproductive

capacity. See Health Resources and Services Administration (“the HRSA”), Women’s Preventive

Services: Required Health Plan Coverage Guidelines

(available at

http://www.hrsa.gov/womensguidelines/). FDA-approved contraceptive medicines and devices include

barrier methods, implanted devices, hormonal methods, and emergency contraceptive “abortifacients,”

such as “Plan B” (which prevents fertilization of the egg) and “Ella” (which stops or delays release of the

2

egg). See FDA, Birth Control Guide ( Aug. 2012) (available at www .fda.gov/For Consumers/ByAudience/ForWomen/ucm18465).
Employers with at least 50 em ployees that do not comply with the m andate face fines, penalties in the f orm of a tax, and enforcement actions for non-compli ance. See 29 U.S.C. § 1 132(a) (civil enforcement actions by the Depart ment of La bor and insurance plan participants ); 26 U.S.C. § 4980D(a),(b) (penalty of $100 per da y per employee for noncompliance with coverage provisions of the ACA); 26 U.S.C. § 4980H (annual tax assessment for noncompliance with requirement to provide health insurance).” Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, 2012 WL 5817323 at *2 (D.D.C., Nov. 16, 2012). See also 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012).
Monaghan is a member of t he Catholic Church. He asserts t hat his Catholic beliefs are in line with Pope Paul VI’s 1968 encyclical Humanae Vitae, which states “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procre ation, whether as an end or as a means”—including contraception—is a grave sin. See Dkt. 8, ex. 2 at ¶¶ 12–15, 24–25, 31. Monaghan also states that he subscribes to authorita tive Catholic teaching regarding the proper nature of health care and medical treatment. For instance, Monaghan believes, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completel y counter t o the health-care profession, which is meant to be an impassioned and unflinchi ng affirmation of li fe.” Id. Plaintiffs do not belie ve that c ontraception or abortion properly constitute health care, and involve immoral practices and the destruction of innocent human life. Id. at ¶¶ 24–25.
On these bases, Monaghan contends that his co mpliance with the mandate would require him to violate his religious beliefs because the mandate forces him, and/or the corporation he controls, to pay for, provide, facilitate, or otherwise support contraception, sterilization and t o some extent, abortion. If DF
3

does not provide the mandated contraceptive coverage, Plaintiffs estimate that DF will be required to pa y approximately $200,000 per year as a tax and/or penalty. Plaintiffs do not want to forego providing health coverage because doing so would impact DF’s ability to compete w ith other companies that of fer such coverage, and its e mployees would have to obtain expe nsive individual policies i n the privat e marketplace.
On December 14, 2012, Plaintiffs brought suit c ontending that the ACA mandate violate s the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000 bb–1 (2006), the Administrative Procedures Act (“APA”), 5 U.S.C. § 500 et seq., and the Free Exercise, Free Association, Establishment, and Free Speech clauses of the First Amendment.
On December 21, 2012, Plaint iffs filed the insta nt Emergency Motion for a Temporary Restraining Order relative to thei r RFRA and First Amendment free exercise, free spe ech, and free association claims, seeking to enjoi n the Government from enforcing the mandate against Plainti ffs. Defendants filed a response on December 25, 2012.
II. LEGAL STANDARD The factors to be weighed be fore issuing a TRO are the same as t hose considered for issuing a preliminary injunction. See, e.g., W orkman v. Bredesen, 486 F.3d 896, 904–05 (6t h Cir. 2007). I n determining whether or not to grant a preliminary injunction, a district court considers four factors: (1) the plaintiff’s likelihood of s uccess on the m erits; (2) whether the plaintiff could suf fer irreparable harm without the injunction; (3) whether granting the injunction will cause subs tantial harm to others; and (4) the impact of the injunction on the public interest. Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). See also Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007). A reviewing court generally will balance these f actors, and no single f actor will necessarily be determinative of whether or not to gra nt the injunction. Connection Distributing Co., 154 F.3d at 288.
4

Courts, however, may grant a preliminary injunction even where the plai ntiff fails to show a str ong or substantial probability of success on the merits, but where he at least shows serious questions going to the merits and irreparable har m which decidedly outweighs any potential har m to the de fendant if the injunction is issued. Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009) (quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 104 (6th Cir. 1982)) (emphasis added).
III. ANALYSIS A. LIKELIHOOD OF SUCCESS ON THE MERITS – RFRA CLAIM1
1. Standing Inherent to an analysis of whether Plai ntiffs are likely to succeed on the merits of their RFRA claim is the question of whether Plainti ffs may make such a claim to begin with. The relevant portion of the RFRA reads as follows: Government shall not substantially bur den a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. 42 U.S.C. § 2000bb–1(a)(emphasis added). The language of the RFRA raises the issue of whether DF— a secular, for-profit business or ganization with a single owner and director —has the ri ght to freel y exercise religion. A corollary to this is the question of whether Monaghan may project his personal free exercise rights through DF, even though the ACA does not, by its terms, require Monaghan to do anything in his individual capacity. For purposes of granting the instant Motion, it is sufficient for the Court to find that Monaghan may bring a clai m under the RFRA based on his argument that the mandate requires him to perform an act that is at odds with his religious beliefs.
1 The Court’s analysis addresses only Plaintiffs’ RFRA claim. The Court finds that it need not include a separate discussion of Plaintif fs’ Free Exercise claim since both theories seek to protect the same liberty interest—the free practice of one’s religion. See Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012).
5

Monaghan states that once the mandate takes effect, he—as sole owner and director of DF—will be required by law t o provide, through DF, health insurance coverage for contraception. Monaghan asserts that acting to have his company provide such coverage would cause hi m to commit a grave sin according to his religious beliefs. This argument is well-taken, si nce DF cannot act (or sin) on its own. Therefore, even though the ACA does not literally a pply to Monaghan, the Cour t is in no position to declare that acting through his company to provide certain health care coverage to his employees does not violate Monaghan’s religious beliefs. They are, after all, his religious beliefs. See Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 ( 1981) (finding it beyond the scope of judicial function and competence for a court to decide whether a party is correctly understanding his religious doctrine because “[c]ourts are not arbiters of scriptural interpretation.”). Accordingly, Monaghan has standing to make his claim under the RFRA. The Court takes no position as to whether DF , as a for-profit business, has an independent right to free ly exercise r eligion. See Legatus, 2012 WL 5359630 at *4 (“[plaintiff corporation] was founded as a family business and rem ains a cl osely held f amily corporation. Accordingly, the court need not, and does not , decide whether [plaintiff], as a fo r-profit business, has an independent First Amendment right to free exercise of religion.”).
2. Substantial Burden The RFRA “provides a statutory claim to individuals whose religious exercise is burdened by the federal government.” United States v. Wilgus, 638 F.3d 1274, 1 279 (10th Ci r. 2011). Congress passed RFRA to restore the compelling interest test that had been applied to laws substantially burdeni ng religious exercise before the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990). Thus, under the RFRA, strict scrutiny a pplies to federa l statutes tha t substantially burden a person’s exercise of religion.
6

The particular burden cited by Plaintiffs is the requirement that DF provide a health insurance plan that includes the contraceptive coverage required by the ACA. The Catholic Church teaches that it is a sin to us e, provide, or other wise support contraception. Monagha n is a member of t he Catholic Church. He asserts that taking steps to have DF provide c ontraception coverage violates his beliefs as a Catholic. If Monaghan c hooses to not have DF pr ovide coverage in order t o avoid the mandate, the n beginning in 2014, DF will incur an annual penalty of $2,000 per full-time employee.
The Supreme Court ha s held that “putting substantial pressure on an adhere nt to modify his behavior and to violate hi s beliefs” substantially burdens a person’ s exercise of reli gion. Thomas, 450 U.S. at 718. As noted, the Court is in no position to decide whether and to what extent Monaghan would violate his religious beliefs by complying with the mandate. Id. at 716. Other courts have assumed that a law substantially burdens a person’s free exercise of religion based on that person’s assertions. See U.S. v. Lee, 455 U.S. 252, 257 (1982) (“We therefore accept appellee’s contention that both payment and receipt of social security benefits is forbidden by the Amish faith.”); May v. Baldwin,109 F.3d 557, 563 (9th Cir. 1997) (“[W]e will assume that undoing May’s dreadlocks imposes a substantial burden on his exercise o f Rastafarianism.”); Hamilton v. Schriro, 74 F.3d 1545, 1552 ( 8th Cir. 1996) (“[W]e assume that the regulations and policies a t issue in the present cas e substantially burden Hamilton’s exercise of hi s religion.”).
As such, the Court will assume that abidi ng by the mandat e would substantially bur den Monaghan’s adherence to the Catholic Church’ s teachings. The Court tur ns next to the question of whether the government has s atisfied its bur den to show that the mandate was nevertheless narrowly tailored to serve a compelling government interest.
3. Compelling Government Interest/Least Restrictive Means
7

The Government may substantially burden a person’s exercise of religion “only if it demonstrates that application of the burden to the person is in furtherance of a compelling gove rnmental interest.” 42 U.S.C. § 2000bb–1(b)(1). A “compelling interest” is one “of the highest order.” Church of the Lukumi Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 ( 1993); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). The government bears the burden of proof and “ambiguous proof will not suf fice.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2739 (2 011). To satisfy this burden, the Governm ent must “specifically identify an ‘actual pr oblem’ in need of solving,” and show that substantially burdening Plaintiffs’ free exercise of religion is “actually necessary to the solution.” Id. at 2739.
The Government advances two interests furthered by the mandate. First, the Government has an interest in promoting public health generally. Courts have assumed, sometimes without deciding, that the improvement of public health is, at least in some instances, a compelling interest. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 310 (1 978) (“It may be ass umed that in so me situations a State’s interest in facilitating the health care of its citizens is suf ficiently compelling to sup port the use of a suspect classification.”); Buchwald v. Univ. of N.M. Sc hool of Med., 159 F.3d 487, 498 (10t h Cir. 1998) (finding that “public health is a compelling government in terest”). The Government argues that the pri mary benefit of the regulations is that “individuals will experi ence improved health as a result of reduced transmission, prevention or dela yed onset, and earlier treat ment of disease.” See Dkt. 12 at 16. Additionally, the Government expects the regulations to increase access to and utilization of preventative services, which are not used at optimal levels today, by expanding coverage and eliminating cost sharing for recommended preventive services. Id. According to the Government’ s theory, increased access t o contraceptive services is a key part of these predicted health outcomes, as a lack of contraceptive use may prove to have negative health consequences. Id.
8

The Government’s second propos ed interest is to “remov[ e] the barriers to econom ic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women” by “ [a]ssuring women equal ac cess to . . . goods, pri vileges, and advantages[.]” Id. (citing Roberts v. U.S. Jaycees, 468 U.S. 609 ( 1984)). The Government states that by including in the ACA gender-specific preventive health services for wome n, Congress assured that the goals and benefits of effective preventive health care would apply with equal force to women, who might otherwise be excluded from the ACA. The Government notes that “women have different health needs than men, and these needs of ten generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” Id. at 17. These costs result in women often forgoing preventive care. Id. Accordingly, this disproportionate burden on women cre ates “financial barriers . . . that prevent women from achieving health and wellbeing for themselves and their families.” Id.
Plaintiffs state that the Govern ment has not shown an “actual problem in need of solving,” the solution to which requires certain individuals—such as Monaghan—to violate their religious beliefs. The “promotion of public he alth,” does not indicate what actual, specific problem is in need of solving. Plaintiff also points to the fact that Defendant Hea lth and Human Service s has provi ded for se veral exemptions to the mandate, based on such factors as the size of the employer , and whether an insuranc e plan is “grandfathered.” A plan is considered “grandfathered” if an individual was enrolled in the plan on March 23, 2010, the date on which the ACA was enacted. 75 Fed. Re g. 34,540. Approximately 193 million health plans were in existence on March 23, 2010, and were theref ore required to comply with some, but not all, of the ACA’s provisions. Id. Plaintiffs question why such exemptions are needed if the Government’s stated goals are of paramount importance, and why the only way to actually solve the cited problems is to enforce the mandate. Plaintiffs thus appear to argue that the Government under mined its compelling interests by not enf orcing the mandate against all health plans immediately when the ACA
9

was enacted. For these reasons, Pl aintiff asserts that there is no compelling reason to f orce certain employers, such as Plaintiffs, to violate their religious beliefs.
If the Government meets the compe lling interest test, it must also prove that it has chos en the least restrictive means of furt hering that interest. 42 U.S.C. § 20000bb–1(b)(2). The Sixth Circ uit describes the least restrictive mean s test as “the extent to which accommodation of the [plaintiff] would impede the state’s objectives,” and explains that “[w]hether the state has made this showing depends on a comparison of the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity.” S. Ridge Baptist Church v. Indus. Comm’n, 911 F.2d 1203, 1206 (6th Cir. 1990).
Granting an additional exemption would not significantly impede the Government’s objectives, at least in regard to the Plaintiffs in this case. The Parties have not provided briefing on the issue of whether and to what extent the Government would be harmed should other, similarly situated plaintif fs bring similar suits against the G overnment. Additionally, Plaintiffs set forth several alternative means for the Government to use t o address their interests. Plaintiffs propose that the Gove rnment could provide the contraceptive services directly, or perhaps offer incentives to employers who provide for such services (as opposed to sanctioning employers who do not) . In dea ling with nearly identi cal factual circumstances, other courts have found that the government failed to meet its burden of proof. See Newland v. Sebelius, No. 12–1123, 2012 WL 3069154 at *8 (D. Colo. July 27, 2012) (“Defendants have failed to adduce facts establishing that government provision of contracep tion services will necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventative health care coverage to women.”); Legatus, 2012 WL 5359630 at *1 1 (“The cost to Pl aintiffs appears provably substantial. The cost to the Government appears provably small[.]”).
10

The Court fi nds that t he parties have set fort h plausible arguments in connection wit h the compelling interest and l east restrictive m eans factors. Yet at this point, th e Court has insuf ficient information before it to adequate ly determine whether the Governme nt’s interests are suf ficiently “compelling,” or whether the Government’ s actions are the least restrictive. Thus the Government has failed to carry its burden.
4. Conclusion Plaintiff has shown that abiding by the mandate w ill substantially burden his exercise of religion. The Government has failed to satisfy its burden of showing that its actions were narrowly tailored to serve a compelling interest. Therefore, the Court finds that Plaintiffs have established at least some likelihood of succeeding on the merits of their RFRA claim, or at least some “serious questions going to the merits” of the claim. Caruso, 569 F.3d at 277. Accordingly, this factor weighs in fa vor of granting Plaintiffs’ motion. The Court turns next to the remaining factors to consider when assessing preliminary injunctive relief. B. IRREPARABLE HARM TO PLAINTIFF The loss of First Amendment freedoms, for eve n minimal periods of ti me, unquestionably constitutes irreparable injury . Elrod v. Burns, 427 U.S. 347, 373 (1976). Moreover, when First Amendment freedoms are at risk, the irreparable harm factor “merges” with the likelihood of success, such that if the plaintiff shows he is likely to succeed on the merits, he has si multaneously proven he will suffer an irr eparable harm. See McNeilly v. Land, 684 F.3d 611, 620–21 (6 th Cir. 2012) (“Once a probability of success on the m erits was shown, irreparable ha rm followed . . . . B ecause [the plaintiff] does not have a likelihood of success on the merits, . . . his ar gument that he is irreparably harmed by the deprivation of his First Amendment rights also fails.”).
11

Because Plaintiffs’ claims involve a First Amendment right, and because t he Court has found some likelihood that Plaintif fs’ RFRA claim will succeed on the merits, the Court finds that irreparable harm could result to Plaintiff. This factor therefore weighs in favor of granting Plaintiffs’ motion. C. IMPACT ON PUBLIC INTEREST
The impact of a preli minary injunction on the pub lic interest turns in lar ge part on whether Plaintiffs’ Constitutional rights are vi olated by the enforcement of the ma ndate. “[I]t is always in the public interest to prevent the violation of a party’s Constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994); see also Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (stating “the public as a whole has a significant interest in ensuring equal protection of the laws and protection of First Amendment liberties”). As noted, Plaintiffs’ Constitutional right to freely exercise religion is at issue in this case. It is in the best interest of the public that Monaghan not be compelled to act i n conflict with his religious be liefs. This factor thus weighs in favor of granting Plaintiffs’ motion. D. BALANCING HARM
Finally, the Court must balance the harm to Plaintiffs if the injunction is de nied with the harm to the Government if the injunction is granted. So l ong as Plaintiffs’ have shown “serious questions” as to the merits of their RFRA claim, and irreparable harm that outwei ghs any potential harm to t he government, the Court may gr ant Plaintiffs’ motion. Caruso, 569 F.3d at 277 (quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 104 (6th Cir. 1982)) (emphasis added).
At this point, the Court may reasonably conclude that this case will not be resolved bef ore January 1, 2013—the date on which the m andate takes effect. As such, denying Plaintiffs’ motion will result in a substantial bur den on Monaghan’s right to free exercise of religion, since on January 1, 2013, Monaghan must choose whether to abi de by the ma ndate and violate his beliefs, or accept t he financial
12

consequences of not doing so. And, as noted, such an infringement upon Plaintiffs’ First Amendment

rights—even if for a short time—constitutes irreparable injury. See Elrod, 427 U.S. at 373.

The Government will suffer some, but co mparatively minimal harm if the injunction is granted.

Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir . 1998) (noting that “the governme nt

presumably would be substantially harmed if enforcement of a constitutional law . . . were enjoined”).

The harm of delaying the implem entation of a statute that may la ter be deemed constitutional is

outweighed by the ris k of substantially bur dening the free exercise of religion. See Legatus, 2012 WL

5359630 at *4. Moreover , the harm of carving out, at least te mporarily, an additional exemption for an

organization with less than 100 employees can hardly be considered a significant or “irreparable” harm to

the Government. Therefore, this factor weighs in favor of granting Plaintiffs’ motion.

V. CONCLUSION

For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiffs’ Emergency Motion

for a Temporary Restraining Order [dkt 8] is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs shall submit to the Court a form of Temporary

Restraining Order consistent with this Opinion.

IT IS SO ORDERED.

Date: December 30, 2012

s/Lawrence P. Zatkoff Lawrence P. Zatkoff U.S. District Judge

13

 
 2:12-cv-15488-LPZ-MJH Doc # 8 Filed 12/21/12 Pg 1 of 37 Pg ID 82

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DOMINO’S FARMS CORPORATION; and )

THOMAS MONAGHAN, Owner of

)

Domino’s Farms Corporation,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of the ) Case No. 2:12-cv-15488

United States Department of Health and

)

Human Services; UNITED STATES

) NOTICE OF MOTION AND BRIEF FOR

DEPARTMENT OF HEALTH AND

) TEMPORARY RESTRAINING ORDER

HUMAN SERVICES; HILDA SOLIS,

)

Secretary of the United States Department of ) Judge Lawrence P. Zatkoff

Labor; UNITED STATES DEPARTMENT )

OF LABOR; TIMOTHY GEITHNER,

) Magistrate Judge Michael Hluchaniuk

Secretary of the United States Department of )

the Treasury; and UNITED STATES

)

DEPARTMENT OF THE TREASURY,

)

)

Defendants.

)

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001

Attorneys for Plaintiffs

PLAINTIFFS’ NOTICE OF MOTION AND EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER & BRIEF IN SUPPORT
PLEASE TAKE NOTICE that at the earliest possible time for the court to hear this motion, Plaintiffs Domino’s Farms Corporation (hereinafter “Domino’s Farms”) and Thomas Monaghan (collectively “Plaintiffs”), by and through their undersigned counsel, will and hereby

2:12-cv-15488-LPZ-MJH Doc # 8 Filed 12/21/12 Pg 2 of 37 Pg ID 83
do move the court for a Temporary Restraining Order pursuant to Fed. R. Civ. P. 65(b)(1) and LR 65.1 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 below, Plaintiffs hereby request that this court enjoin the enforcement of Defendants’ Health and Human Services Mandate (hereinafter “HHS Mandate”) which violates Plaintiffs’ 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 temporary restraining order, the Plaintiffs focus solely on Claims I-III and V-VIII of their complaint; however, Plaintiffs do not forfeit any of the claims alleged in their complaint.
1. The purpose for a TRO in this case is to permit Plaintiffs to continue to provide insurance to their employees that does not violate Plaintiffs’ constitutionally and statutorily granted rights to free exercise of religion, free speech, and free association.
2. Without relief from this Court, the Plaintiffs will be irreparably harmed as the Plaintiffs’ constitutional rights will be violated.
3. This TRO request requires immediate attention because the HHS Mandate applies to Plaintiffs on January 1, 2013.
4. Plaintiffs, individually and through counsel, have made attempts to resolve this matter prior to seeking this TRO. Plaintiffs have made contact with the Department of Justice, and specifically Brad Humphreys the Assistant United States Attorney assigned to the case.
5. On December 17th, 2012, Plaintiffs served all Defendants with the complaint.
2

2:12-cv-15488-LPZ-MJH Doc # 8 Filed 12/21/12 Pg 3 of 37 Pg ID 84
6. On December 19th, 2012, Plaintiffs’ counsel spoke with the Brad Humphreys of the Department of Justice, and no agreement pertaining to the TRO was reached. The parties did not reach concurrence.
7. With the limited amount of time before January 1, 2013 and inability to reach concurrence with the Defendants prior to this date, Plaintiffs had no choice but to seek this TRO with the court.
8. Plaintiffs’ counsel will provide notice of this TRO request by sending a copy of this motion and brief to the Department of Justice via facsimile at (202) 616-8470. The phone number for the Department of Justice is (202) 514-3367. Respectfully submitted this 21st day of December, 2012.
Attorneys for Plaintiffs:
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 emersino@thomasmore.org s/ Richard Thompson_____________ Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 rthompson@thomasmore.org
3

2:12-cv-15488-LPZ-MJH Doc # 8 Filed 12/21/12 Pg 4 of 37 Pg ID 85 ISSUE PRESENTED
I. Whether denying Plaintiffs the ability to offer health insurance without a mandate from the government which forces the Plaintiffs’ to provide health insurance that violates their sincerely held religious beliefs, free speech, and freedom of association causes irreparable harm sufficient to warrant injunctive relief.
4

2:12-cv-15488-LPZ-MJH Doc # 8 Filed 12/21/12 Pg 5 of 37 Pg ID 86 CONTROLLING AUTHORITY
American Pulverizer Co., et al. v. Dep’t of Health & Human Servs, et al., No. 12-3459, slip op. (W.D. Mo. December 20, 2012) Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) Elrod v. Burns, 427 U.S. 347 (1976) Legatus, et al. v. Sebelius, et al., No. 12-12061, slip op. (E.D. Mich. October 31, 2012) Newland, et al. v. Sebelius, et al., No. 12-1123, slip op. (D. Colo. July 27, 2012) O’Brien v. U.S. Dep’t of Health & Human Servs., No. 12-3357, order (8th Cir. November 28, 2012) Sherbert v. Verner, 374 U.S. 398 (1963) Tyndale House Publishers, Inc. v. Sebelius, et al., No. 12-1635, slip op. (D.D.C. Nov. 16, 2012) Wisconsin v. Yoder, 406 U.S. 205 (1972)
5

2:12-cv-15488-LPZ-MJH Doc # 8 Filed 12/21/12 Pg 6 of 37 Pg ID 87

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DOMINO’S FARMS CORPORATION; and )

THOMAS MONAGHAN, Owner of

)

Domino’s Farms Corporation,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of the ) Case No. 2:12-cv-15488

United States Department of Health and

)

Human Services; UNITED STATES

) NOTICE OF MOTION AND BRIEF FOR

DEPARTMENT OF HEALTH AND

) TEMPORARY RESTRAINING ORDER

HUMAN SERVICES; HILDA SOLIS,

)

Secretary of the United States Department of ) Judge Lawrence P. Zatkoff

Labor; UNITED STATES DEPARTMENT )

OF LABOR; TIMOTHY GEITHNER,

) Magistrate Judge Michael Hluchaniuk

Secretary of the United States Department of )

the Treasury; and UNITED STATES

)

DEPARTMENT OF THE TREASURY,

)

)

Defendants.

)

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001

Attorneys for Plaintiffs

PLAINTIFFS’BRIEF IN SUPPORT OF MOTION AND EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

2:12-cv-15488-LPZ-MJH Doc # 8 Filed 12/21/12 Pg 7 of 37 Pg ID 88

TABLE OF CONTENTS

Page

TABLE OF CONTENTS................................................................................................................. i

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION ...........................................................................................................................1

FACTUAL BACKGROUND ..........................................................................................................2

ARGUMENT ...................................................................................................................................9

A. Plaintiffs’ Likelihood of Success on the Merits...................................................................9

i. The HHS Mandate violates the Religious Freedom Restoration Act ..........................................................................................................................10

1. The HHS Mandate substantially burdens Plaintiffs’ free exercise of religion...................................................................................................12

2. The HHS Mandate fails to use the least restrictive means and fails to justify a compelling interest...........................................................13

ii. The HHS Mandate violates the First Amendment to the United States Constitution, Free Exercise Clause ........................................................................15

1. The HHS Mandate is not neutral nor generally applicable, and fails strict scrutiny ...............................................................................17

iii. The HHS Mandate violates the First Amendment to the Constitution, Free Speech and Expressive Association...............................................................19

B. Plaintiffs Will Suffer Irreparable Harm Without Injunctive Relief ...................................22

C. Granting a Temporary Restraining Order Will Cause No Substantial Harm to Others.....22

D. The Impact of a Temporary Restraining Order on the Public Interest Favors Granting the Injunction ......................................................................................................23

CONCLUSION ..............................................................................................................................24

CERTIFICATE OF SERVICE ......................................................................................................25

i

2:12-cv-15488-LPZ-MJH Doc # 8 Filed 12/21/12 Pg 8 of 37 Pg ID 89

Cases

TABLE OF AUTHORITIES

Page

Abood v. Detroit Board of Education, 431 U.S. 209 (1977).......................................................................................................................19

American Pulverizer Co., et al. v. Dep’t of Health & Human Servs, et al., No. 12-3459, slip op. (W.D. Mo. December 20, 2012) ...................................................................2

Bowen v. Roy, 476 U.S. 693 (1986) ......................................................................................................................16

Boy Scouts of America v. Dale, 530 U.S. 640 (2000).......................................................................................................................20

Braunfeld v. Brown, 366 U.S. 599 (1961).......................................................................................................................11

Brown v. Entm’t merchs. Ass’n, 131 S. Ct. 2729 (June 27, 2011) ....................................................................................................13

Capitol Square Rev. & Adv. Bd. V. Pinette, 515 U.S. 753 (1995).......................................................................................................................19

City of Boerne v. Flores, 521 U.S. 507 (1997) ......................................................................................................................13

Connection Distributing Co. v. Reno, 154 F.3d 288 (6th Cir. 1998) ................................................................................................ passim

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).............................................................................................................1, 15, 16

Dayton Area Visually Impaored Persons, Inc. v. Fisher, 70 F.3d 1474 (6th Cir. 1995) .........................................................................................................23

Elrod v. Burns, 427 U.S. 347 (1976).................................................................................................................21, 22

Employment Div. Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990)...........................................................................................................10, 15, 16

G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) .........................................................................................................23

Gonzales v. O Centro Espirita Beneficente Uniao de Vegetal, ii

2:12-cv-15488-LPZ-MJH Doc # 8 Filed 12/21/12 Pg 9 of 37 Pg ID 90
546 U.S. 418 (2006).............................................................................................................1, 10, 13
Healy v. James, 408 U.S. 169 (1972).......................................................................................................................19
Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995).......................................................................................................................21
Keller v. State Bar of California, 496 U.S. 1 (1990)...........................................................................................................................19
Legatus, et al. v. Sebelius, et al., No. 12-12061, slip op. at 13 (E.D. Mich. October 31, 2012) ........................................2, 12, 14, 22
McDaniel v. Paty, 435 U.S. 618 (1978).......................................................................................................................15
Murdock v. Pennsylvania, 319 U.S. 105 (1943).......................................................................................................................18
NAACP v. Alabama, 357 U.S. 449 (1958).......................................................................................................................19
Newland, et al. v. Sebelius, et al., No. 12-1123, slip op. at 17-18 (D. Colo. July 27, 2012) ...............................................2, 10, 13, 17
Newsome v. Norris, 888 F.2d 371 (6th Cir. 1989) .........................................................................................................22
O’Brien v. U.S. Dep’t of Health & Human Servs., No. 12-3357, order (8th Cir. November 28, 2012) ..........................................................................2
Roberts v. United States Jaycees, 468 U.S. 609 (1984).......................................................................................................................19
Sherbert v. Verner, 374 U.S. 398 (1963)...........................................................................................................10, 11, 12
Southerland v. Fritz, 955 F. Supp. 760 (E.D. Mich. 1996)................................................................................................9
Tyndale House Publishers, Inc. v. Sebelius, et al., No. 12-1635, slip op. (D.D.C. Nov. 16, 2012).................................................................................2
W. Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624 (1943).........................................................................................................................9
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Ward v. Polite, 667 F.3d 727 (6th Cir. 2012) ........................................................................................................17 Wisconsin v. Yoder, 406 U.S. 205 (1972)...........................................................................................................10, 11, 12 Wooley v. Maynard, 435 U.S. 705 (1977).......................................................................................................................20 Workman v. Bredesen, 486 F.3d 896 (6th Cir. 2007) ...........................................................................................................9
Statutes and Other Authorities 26 U.S.C. § 4980D ........................................................................................................................12 26 U.S.C. § 4980H ....................................................................................................................8, 12 26 U.S.C. § 5000A(d)(2)(A)(i)-(ii) ...........................................................................................6, 17 42 U.S.C. § 2000bb ................................................................................................................10, 15 42 U.S.C. § 2000bb-1(a) ..............................................................................................................10 42 U.S.C. § 2000bb-1(b) ........................................................................................................10, 12 42 U.S.C. § 2000cc-5(7)(A) .........................................................................................................12 42 U.S.C. § 300gg-13(a)(1) ............................................................................................................5 42 U.S.C. § 300gg-13(a)(4) ........................................................................................................4, 5 42 U.S.C. § 18011(a)(2) ............................................................................................................6, 18
Regulations 75 Fed. Reg. 41726 (2010) .............................................................................................................5 76 Fed. Reg. 46621 (published Aug 3, 2011) .................................................................................5 77 Fed. Reg. 8725 (Feb. 15, 2012) ..........................................................................................4, 5, 7
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2:12-cv-15488-LPZ-MJH Doc # 8 Filed 12/21/12 Pg 11 of 37 Pg ID 92 26 C.F.R. § 54.9815-1251T .......................................................................................................6, 18 29 C.F.R. § 2590.715-1251........................................................................................................6, 18 45 C.F.R. § 147.130 .....................................................................................................................4, 5 45 C.F.R. § 147.130(a)(iv)(A) ...............................................................................................6, 7, 18 45 C.F.R. § 147.130(a)(iv)(B) ...............................................................................................6, 7, 18 45 C.F.R. § 147.130(a)(1)(iv) ......................................................................................................4, 5 45 C.F.R. § 147.140 ...................................................................................................................6, 18 Other Authorities http://www.hrsa.gov/womensguidelines......................................................................................4, 5
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INTRODUCTION Plaintiffs Domino’s Farms and Thomas Monaghan bring this motion for a temporary restraining order 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. 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. The burden forced on the Plaintiffs cannot be justified by the Defendants as using the least restrictive means or furthering a compelling interest. The Defendants offer numerous secular and even religious exemptions to the HHS Mandate, but fail to offer the same respect to the Catholic beliefs of the Plaintiffs—showing that Defendants either care so little about those professing Catholic beliefs that they will not be bothered to address their concerns or showing that Defendants are patently discriminating against and disrespecting those holding Catholic beliefs. Neither provides the Defendants with a constitutional justification for violating the law. The scheme of exemptions imposed by the Defendants is not neutral nor generally applicable. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993); Gonzales v. O Centro Espirita Beneficente Uniao de Vegetal, 546 U.S. 418, 432-87 (2006). Defendants additionally seek to violate Plaintiffs’ freedom of speech through the counseling that the HHS Mandate requires. Defendants’ illegal mandate poses an urgent threat to the Plaintiffs, forcing the Plaintiffs to comply by January 1, 2013. If this Court does not issue injunctive relief at the soonest possible date, Defendants will be irreparably harmed. Under the HHS Mandate, Plaintiffs are
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forced to choose between violating their religious beliefs or violating federal law. Plaintiffs Domino’s Farms and Thomas Monaghan could face penalties for noncompliance of the law with fines of $2,000 per employee per year at minimum. The fines are even more insurmountable if Plaintiffs Domino’s Farms and Thomas Monaghan decided to offer insurance without the objectionable coverage. If Plaintiffs choose to violate their religious beliefs and offer health insurance in compliance with the Mandate, Plaintiffs and all of their employees will be forced to switch health care plans. These employees may then be forced to switch to an insurance plan they may not want, to potentially switch doctors, and to potentially pay higher premiums.
Being forced to violate one’s sincerely held religious beliefs is a severe burden on the Plaintiffs. Facing imminent, irreparable harm to their religious freedom and Constitutional rights, Plaintiffs seek injunctive relief from the HHS Mandate. Five courts thus far, including the Eastern District of Michigan, have enjoined the HHS Mandate for for-profit companies indistinguishably situated and structured to the Plaintiffs. See Legatus, et al. v. Sebelius, et al., No. 12-12061, 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); American Pulverizer Co., et al. v. Dep’t of Health & Human Servs, et al., No. 12-3459, slip op. (W.D. Mo. December 20, 2012); Newland, et al. v. Sebelius, et al., No. 12-1123, slip op. (D. Colo. July 27, 2012); Tyndale House Publishers, Inc. v. Sebelius, et al., No. 12-1635, slip op. (D.D.C. Nov. 16, 2012).
FACTUAL BACKGROUND Domino’s Farms Corporation is a for-profit, and is treated as a subchapter S corporation for income tax purposes. (Monaghan Decl. at ¶ 3 at Ex. 2; Leipold Decl. at ¶ 10 at Ex. 1). Plaintiff Domino’s Farms is incorporated under the laws of Michigan. (Monaghan Decl. at ¶ 2 at
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Ex. 2). Plaintiff Thomas Monaghan is the owner, sole shareholder, and sole director of Domino’s Farms. (Monaghan Decl. at ¶¶ 13, 14 at Ex. 2).
Plaintiff Domino’s Farms Corporation is the property management company for Domino’s Farm Office Park, LLC and DF Land Development, LLC. (Monaghan Decl. at ¶ 4 at Ex. 2). Domino’s Farms Office Park, LLC is a premier office park, home to over fifty successful corporations, professional firms, non-profits, and entrepreneurial businesses. (Monaghan Decl. at ¶ 5 at Ex. 2). Domino’s Farms Office Park is 937,203 sq. ft. and Plaintiff Domino’s Farms provides numerous first class services and amenities throughout. (Monaghan Decl. at ¶ 6 at Ex. 2). Some of the amenities and services Domino’s Farms offers to its tenants include an on-site Catholic chapel, dining and catering, a bistro, a fitness center, and Catholic bookstore. (Monaghan Decl. at ¶ 7 at Ex. 2). The on-site chapel offers Mass four times daily and twenty three times a week. (Monaghan Decl. at ¶ 8 at Ex. 2). Domino’s Farms also offers several inhouse services, including on-site property maintenance, a twenty-four hour work order request system, twenty-four hour security, telephone and data/internet services, maintenance and housekeeping, office suite build-outs and enhancements, and secure loading and storage. (Monaghan Decl. at ¶ 9 at Ex. 2). Plaintiffs employ 45 full-time employees. Plaintiffs also employ 44 part-time employees, with regular part-time employees working approximately 28,800 hours per year. (Monaghan Decl. at ¶ 10 at Ex. 2).
Plaintiffs align their beliefs with Pope Paul VI’s 1968 encyclical Humanae Vitae, which states “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception—is a grave sin. (Monaghan Decl. at ¶¶ 12-15, 24-25, 31 at Ex. 2; Leipold Decl. at ¶ 14 at Ex. 1). Plaintiffs subscribe to authoritative Catholic teaching regarding the proper
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nature of health care and medical treatment. For instance, Plaintiffs believe, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.” Id. Plaintiffs do not believe that contraception or abortion properly constitute health care, and involve immoral practices and the destruction of innocent human life. (Monaghan Decl. at ¶¶ 24-25 at Ex. 2).
Due to these beliefs, Plaintiffs offer an insurance policy which specifically excludes coverage for contraception, sterilization, abortion, and abortifacients. (Leipold Decl. at ¶¶ 13-14 at Ex. 1; Monaghan Decl. at ¶ 23, 31-34 at Ex. 2). Plaintiffs designed its group health insurance plan through the Ave Maria Human Resources and Blue Cross/Blue Shield of Michigan which specifically excludes abortion, abortifcients, sterilization, and contraception from its insurance plan. (Leipold Decl. at ¶¶ 13-14 at Ex. 1; Monaghan Decl. at ¶ 23, 31-34 at Ex. 2).
However on January 1, 2013, Plaintiffs lose the right to make health care insurance decisions in line with their Catholic views. (Leipold Decl. at ¶¶ 12, 15 at Ex. 1; Monaghan Decl. at ¶ 35-37 at Ex. 2). On January 1, 2013, the Health and Human Services Mandate of the Affordable Care Act (“HHS Mandate”) will go into effect against the Plaintiffs, and force Plaintiffs to pay, fund, contribute, provide, or support artificial contraception, sterilization, abortion, abortifacients or related education and counseling, in violation of their Constitutional rights and deeply held religious beliefs beginning at the end of their plan year. 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).
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The Affordable Care Act called for health insurance plans to provide coverage and “not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines” and directed the Secretary of the United States Department of Health and Human Services, Defendant Sebelius, to determine what would constitute “preventative care.” 42 U.S.C § 300gg-13(a)(4). Defendants United States Health and Human Services, United States Department of Treasury, and United States Department of Labor, published an interim final rule under the Affordable Care Act. 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. 1 Id. Prior to adopting those guidelines, Defendants accepted public comments. Upon information and belief, a large number of groups filed comments, warning of the potential conscience implications of requiring religious individuals and groups to pay for contraception, abortion, 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 Food and Drug Administration-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 (the “HHS Mandate”). 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). All FDA-
1 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 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.
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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”; and ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures. (http://www.hrsa.gov/womensguidelines).
The HHS 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 “preventative care” by making available and subsidizing contraception, abortion, and abortifacients such as the “morning-after pill,” “Plan B,” and “ella.” The HHS 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 consciences and deeply held religious beliefs.
The Affordable Health Care Act and the HHS Mandate include a number of exemptions; however, Plaintiffs do not fall under any of these exemptions. 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 nonprofit 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 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).
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Neither of Plaintiffs’ health insurance plans is “grandfathered.” (Leipold Decl. at ¶¶ 7-8 at Ex. 1; Monaghan Decl. at ¶ 38 at Ex. 2).2 Plaintiffs do not qualify for the “religious
employer” exemption contained in 45 C.F.R. § 147.130 (a)(iv)(A) and (B). (Leipold Decl. at ¶ 9 at Ex. 1).3 The HHS Mandate indicates that the Health Resources and Services Administration
(“HRSA”) “may” grant religious exemptions to certain religious employers. 45 C.F.R. §
147.130(a)(iv)(A). Plaintiffs cannot be considered for such an exemption as Domino’s Farms is
a for-profit business. (Leipold Decl. at ¶ 10 at Ex. 1; Monaghan Decl. at ¶ 40 at Ex. 2).
On January 20, 2012, Defendant Sebelius announced that there would be no change to the
religious exemption. (Ex. 6). She added that “[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,” on the condition that
those employers certify they qualify for the extension. This announcement provided no relief to
the Plaintiffs. Plaintiffs have not applied, as a for-profit company could not even be considered
for the temporary safe-harbor provision. 77 Fed. Register 8725 (Feb. 15, 2012)
2 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) Legatus does not take the position that its health care plan is a grandfathered plan and thus does 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; (Leipold Decl. at ¶¶ 7-8 at Ex. 1). 3 The HHS Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
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Defendant Sebelius also announced on January 20, 2012 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,” inherently acknowledging that contraceptive services are readily available without mandating Plaintiffs subsidize them. Yet, Defendants have forced the Plaintiffs to face this decision: comply with their deeply held religious beliefs or comply with federal law.
Plaintiffs’ plan year begins on January 1, 2013. (Leipold Decl. at ¶ 12 at Ex. 1; Monaghan Decl. at ¶¶ 50, 53 at Ex. 2). On January 1, 2013, Plaintiffs will be forced to choose: comply with the HHS Mandate and violate their deeply held religious beliefs, or disobey federal law and incur the consequences. If Plaintiffs were to decide to terminate health care entirely in order to comply with their deeply held religious beliefs, the Plaintiffs face severe burdens. Plaintiffs face enormous penalties. Upon not providing insurance to its employees, Plaintiffs would incur a $2,000 annual fine per employee, of which they have approximately 170 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.
All Plaintiffs would face substantial competitive disadvantages upon discontinuing employee health insurance in that the Plaintiffs will no longer be able to offer health care and would face disadvantages in employee recruitment and retention. Plaintiffs and their employees would be forced to seek expensive insurance on the private market. As Plaintiffs confront the looming deadline of the effective date of the HHS Mandate, employees have expressed fears for themselves and their families about what would happen if Plaintiffs were forced to stop offering health insurance. All Plaintiffs wish to do is simply continue providing health insurance in
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compliance with their sincere and deeply held religious beliefs, as they currently do. (Leipold Decl. at ¶¶ 20-22 at Ex. 1; Monaghan Decl. at ¶¶ 48-49 at Ex. 2). Without immediate relief from this Court, the Plaintiffs must choose between abandoning their faith to comply with federal law or violating federal law and incurring enormous consequences. (Leipold Decl. at ¶ 13-22 at Ex. 1; Monaghan at ¶¶ 50-56 at Ex. 2).
ARGUMENT The factors to be weighed before issuing a TRO are the same as those considered for issuing a preliminary injunction. See, e.g., Workman v. Bredesen, 486 F.3d 896, 904-05 (6th Cir. 2007); Southerland v. Fritz, 955 F. Supp. 760, 761 (E.D. Mich. 1996). The standard for issuing a preliminary injunction in this Circuit is well established. In Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998), the court stated: In determining whether or not to grant a preliminary injunction, a district court considers four factors: (1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff could suffer irreparable harm without the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of the injunction on the public interest. Id.; see also Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007). Typically, the reviewing court will balance these factors, and no single factor will necessarily be determinative of whether or not to grant the injunction. Connection Distributing Co., 154 F.3d at 288. However, because this case deals with a violation of Plaintiffs’ First Amendment rights, the crucial and often dispositive factor is whether Plaintiffs are likely to prevail on the merits. Id. A. Plaintiffs’ Likelihood of Success on the Merits It is not surprising that in our country founded by individuals, who sought refuge from religious persecution, the Supreme Court of our country has succinctly avowed, If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism,
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religion, or other matters of opinion or force citizens to confess by word or act their faith therein. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added). The statement written by Justice Jackson in his majority opinion is considered one of the Court's greatest statements about our fundamental freedoms established by the Bill of Rights. It is upon this backdrop, and resting upon this body of jurisprudence built upon deference to the inalienable freedom of religion, that the constitutionality of the HHS Mandate must be decided.
i. The HHS Mandate violates the Religious Freedom Restoration Act. Congress enacted the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. (hereinafter “RFRA”), in response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), where, in upholding a generally applicable law that burdened the sacramental use of peyote, the Supreme Court held that the First Amendment's Free Exercise Clause did not require the court to engage in a case-bycase assessment of the religious burdens imposed by facially constitutional laws, id. at 883-90. Congress, by enacting RFRA three years after the decision in Smith, purposefully adopted a statutory rule comparable to the constitutional rule rejected in Smith. RFRA strictly prohibits the Federal Government from substantially burdening a person's exercise of religion, "even if the burden results from a rule of general applicability," 42 U.S.C. § 2000bb-1(a), 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." 42 U.S.C. § 2000bb-1(b). See also Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (holding that RFRA applies to the federal government); Newland, et al. v. Sebelius, et al., No. 12-1123, slip op. at 17-18 (D. Colo. July 27, 2012) (granting preliminary injunction from HHS Mandate due to violation of RFRA) (Ex. 7).
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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. In Sherbert the 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 (“Government may neither compel affirmation of a repugnant belief, nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, nor employ the taxing power to inhibit the dissemination of particular religious views.”) (internal citations omitted).
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 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
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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. The HHS Mandate substantially burdens Plaintiffs’ free exercise of religion.
Plaintiffs’ operation of their health insurance plans according to their religious beliefs is the “exercise of religion” under the 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 the Catholic Church, Plaintiffs’ sincerely held religious beliefs prohibit them from providing or purchasing health insurance coverage for contraception, abortion, abortifacients, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. The HHS Mandate creates government-imposed coercive pressure on Plaintiffs to purchase insurance and provide 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 Domino’s Farms and Thomas Monaghan to substantial per employee fines for their religious exercise—roughly
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$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 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, et al. v. Sebelius, et al., 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 (finding “a fine imposed against appellant” to be a quintessential burden). The HHS Mandate imposes a substantial burden on Plaintiffs’ religious exercise by forcing Plaintiffs to violate their deeply held religious beliefs and the teachings of the Catholic Church to which they belong.
2. The HHS Mandate fails to use the least restrictive means and 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 the Defendants, not the 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, the 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). The Defendants are charged to “specifically identify an ‘actual problem’ in need of
13

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solving,” and show that substantially burdening Plaintiffs’ free exercise of religion is “actually necessary to the solution.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (June 27, 2011). The government bears the burden of proof and “ambiguous proof will not suffice.” Id. at 2739. Indeed, one District Court has already ruled that the government failed to meet this burden of proof under the HHS Mandate. 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”).
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. Defendant Kathleen Sebelius herself has admitted that contraceptive services are already readily available “at sites such as community health centers, public clinics, and hospitals with income-based support.” Physicians and pharmacies have traditionally also provided contraceptive and abortifacient services. There is no compelling reason for the HHS Mandate to take the matter one step further by forcing employers, such as the Plaintiffs, objecting upon sincere religious grounds to subsidize these services through the insurance plans they sponsor. If the Defendants were truly concerned with the lack of access to contraceptives and abortifacients in this country, the Defendants could provide those “preventative services” without burdening the Plaintiffs’
14

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religious beliefs. Defendants could provide the “preventative services” directly, Defendants could arrange—although they admit this system is already in place—for the “preventative services” to be made available at community health centers, public clinics, and hospitals, or Defendants could even 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.
Furthermore, the HHS Mandate fails to provide the least restrictive means of furthering Defendants’ stated interests of providing contraceptives and abortifacients, as Defendant Health and Human Services 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. The HHS Mandate imminently threatens violation of the Plaintiffs’ rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
ii. The HHS Mandate violates the First Amendment to the United States Constitution, Free Exercise Clause.
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
15

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government may only pass a law that burdens certain religious exercises when the law is facially neutral and of general applicability. Id. at 531 (discussing, when not subject to the scrutiny and analysis of RFRA, a facially neutral law of general applicability is permissible notwithstanding any incidental burdens it imposes, so long as the law passes rational basis review). 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)); see also id. at 547 ("It is established in our strict scrutiny jurisprudence that 'a law cannot be regarded as protecting an interest 'of the highest order' . . . when it leaves appreciable damage to that supposedly vital interest unprohibited'”) (internal quotation and citation omitted).
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 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
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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.
Likewise, in the instant case, the HHS Mandate cannot avoid strict scrutiny as the law is not 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”).
Despite being informed in detail of the imposition on Catholic belief beforehand, Defendants designed the Mandate and the religious exemptions to the Mandate in a way that made it impossible for Plaintiffs to comply with their religious beliefs. By design, the Defendants imposed the Mandate on some religious organizations or religious individuals but not on others, resulting in discrimination among religions. The Defendants have created a number of categorical exemptions and individualized exemptions, none of which alleviate the
17

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chill imposed on the Plaintiffs’ free exercise of religion. The Affordable Care Act 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.
 Non-profit employers who qualify under the narrow exemption of a “religious employer.” 45 C.F.R. § 147.130 (a)(iv)(A) and (B).
The HHS Mandate in its exemptions completely fails to address the constitutional and statutory implications on for-profit, secular employers such as Plaintiffs Domino’s Farms and Thomas Monaghan. Furthermore, there is no exemption available for a member of the Catholic 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 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 anchor onto 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.
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iii. The HHS Mandate violates the First Amendment to the Constitution, Free Speech and Expressive Association.
As the United States Supreme Court has long recognized, “spreading one’s religious beliefs” and “preaching the Gospel” are activities protected by the First Amendment. See Murdock v. Pennsylvania, 319 U.S. 105, 110 (1943). Supreme Court precedent also “establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.” Capitol Square Rev. & Adv. Bd. v. Pinette, 515 U.S. 753, 760 (1995).
Additionally, “[a]mong the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition.” Healy v. James, 408 U.S. 169, 181 (1972) (citations omitted). The Sixth Circuit echoed this fundamental understanding of the right to association by stating, “Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of freedom of speech.” Connection Distributing Co., 154 F.3d at 295 (citing NAACP v. Alabama, 357 U.S. 449, 460 (1958).
Indeed, “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984); see also id. at 636 (O’Connor, J., concurring) (“Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement.”).
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The government traditionally has not been allowed to force a person—who objects to an activity or conduct on moral grounds—to subsidize, and thereby endorse, conduct that he believes, teaches, or otherwise states is wrong. See, e.g., Keller v. State Bar of California, 496 U.S. 1 (1990) (holding that the government cannot compel state bar members to finance political and ideological activities of which they disagree); Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (holding that the government cannot require state employees to provide financial support for ideological union activities they oppose which are unrelated to collective bargaining); Wooley v. Maynard, 430 U.S. 705 (1977) (enjoining a state law which required that plaintiff affix the motto “Live Free or Die” on his license plate when the plaintiff, who was a Jehovah’s Witness, found the motto morally repugnant).
Indeed, the First Amendment protects the right “to hold a point of view different from the majority and to refuse to foster . . . an idea they find morally objectionable.” Wooley v. Maynard, 430 U.S. 705, 715 (1977). Therefore, Plaintiffs should not be compelled by the government to provide education and counseling against their deeply held beliefs. Plaintiffs should not be compelled to subsidize and endorse private conduct that it objects to—especially when Plaintiffs have chosen to express their faith through religious speech and assembly. Plaintiffs will be hard-pressed to effectively and persuasively communicate the Church’s teachings that contraception, abortion, and abortifacients are immoral, yet simultaneously pay for and provide contraceptives. The precepts are irreconcilable.
Based on the speech at issue here (expressing one’s faith), Plaintiffs are also protected by “the First Amendment’s expressive associational right.” See Boy Scouts of America v. Dale, 530 U.S. 640, 648-650 (2000) (finding that the Boy Scouts are protected by the First Amendment and stating, “It seems indisputable that an association that seeks to transmit . . . a system of values
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engages in expressive activity”). In Boy Scouts of America, the Supreme Court held that “freedom of expressive association” under the Free Speech Clause prohibited the enforcement of a public accommodation law when it required the Boy Scouts be led by a homosexual scoutmaster. Id. at 648. The Supreme Court held that compelling the enforcement of the public accommodation law would “force the organization to send a message, both to the youth members and the world, that the [organization] accepts homosexual conduct as a legitimate form of behavior.” Id. at 653. Correspondingly, in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995), the Supreme Court held that the First Amendment gave the plaintiffs, organizers of a private St. Patrick’s Day parade, the right to exclude a homosexual group from the parade, when the plaintiffs believed that the group’s presence would communicate a message about homosexual conduct to which the plaintiffs objected. The First Amendment protected the plaintiffs’ right “not to propound a particular point of view,” id. at 575, and the Supreme Court protected the “principle of speaker’s autonomy,” id. at 580.
Since the First Amendment through its free speech and expressive association provisions protects nonreligious organizations based upon moral objections to exclude individuals whose mere presence was thought to send an objectionable message, then reasonably the Court should protect the free speech and association of the Plaintiffs who object to subsidizing and supporting certain messages and conduct based upon their deeply held religious beliefs. The compelled subsidization and support of contraceptives, abortion, and abortifacients in the instant case strikes at the heart of one’s ability to communicate unambiguous moral teachings and religious beliefs, and one’s ability to form associations that maintain adherence to those teachings.
The Defendants cannot compel speech and association they find favorable, but is volative of the Plaintiffs’ religious beliefs. Based upon this, and all other reasons articulated in this brief,
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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. And it is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” 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, “The potential for harm to Plaintiffs exists, and with the showing Plaintiffs have made thus far of being able to convincingly prove their case at trial, it is properly characterized as irreparable.”)(emphasis added); see also Connection Distributing Co., 154 F.3d at 288 (quoting Elrod); Newsome v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) (“The Supreme Court has unequivocally admonished that even minimal infringement upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.” (citing Elrod)).
Additionally, Plaintiffs will suffer financial harm. Plaintiffs Domino’s Farms and Thomas Monaghan face per employee fines for noncompliance with the HHS Mandate. 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. Plaintiffs will incur costs and expenses due to the enforcement of the HHS Mandate. If an injunction does not issue, Plaintiffs will be forced to violate their religious beliefs or potentially forfeit health insurance.
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C. Granting a Temporary Restraining Order Will Cause No Substantial Harm to Others. In this case, the likelihood of harm to Plaintiffs is substantial because Plaintiffs’ First
Amendment freedoms and Plaintiffs’ freedom of religion are at issue, and the deprivation of these rights, 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. See Connection Distributing Co., 154 F. 3d at 288; see also Legatus, slip op. at 28 (holding that the HHS Mandate should be enjoined, “The Government will suffer some, but comparatively minimal harm if the injunction is granted. . . . The balance of harms tips strongly in Plaintiffs’ favor.”). The Defendants already exempt a number of other employers and individuals from the HHS Mandate. Allowing the Plaintiffs an exemption in order to stop a violation of their deeply held religious beliefs fails to cause harm to the Defendants. Any legitimate interest asserted by Defendants or others will remain fully protected by existing provisions of law.
In the final analysis, the question of harm to others as well as the impact on the public interest “generally cannot be addressed properly in the First Amendment context without first determining if there is a constitutional violation. . . .” Connection Distribution Co., 154 F.3d at 288. For if Plaintiffs show that their First Amendment rights have been violated, then the harm to others is inconsequential. As demonstrated, the enforcement of Defendants’ HHS Mandate on Plaintiffs violates the First Amendment; therefore, any “harm” to others is inconsequential.
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D. The Impact of the Temporary Restraining Order 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 Mandate. As the Sixth Circuit noted, “[I]t is always in the public interest to prevent the violation of a party’s Constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994); see also Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (stating “the public as a whole has a significant interest in ensuring equal protection of the laws and protection of First Amendment liberties”). Aforementioned, the enforcement of Defendants’ HHS Mandate is a direct violation of Plaintiffs’ fundamental rights protected by the First Amendment. Therefore, the public interest is best served by preventing the Defendants from compelling individuals to violate their religious beliefs and rights of conscience, protected by RFRA and the First Amendment.
In the final analysis, the Defendants’ HHS Mandate violates the Plaintiffs’ fundamental Constitutional rights. The HHS Mandate forces the Plaintiffs to violate their deeply held religious beliefs of their Catholic faith. Without an injunction, Plaintiffs will be irreparably harmed.
CONCLUSION Plaintiffs hereby request that this court issue a temporary restraining order. The HHS Mandate violates both RFRA and the First Amendment. Unless this Court issues a temporary restraining order prior to January 1, 2013 when the Plaintiffs need to comply with the HHS Mandate, Plaintiffs inescapably must choose between violating their religious beliefs or suffering massive financial penalties and harm to their goodwill and sustainability. Defendants, conversely, would face no harm from an injunction as the Mandate already exempts millions of
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other companies and organizations. Plaintiffs seek for this Court to enjoin Defendants’ requirement that Plaintiffs cover contraception, abortifacients, and counseling and education for the same, in their health plans. A form order is attached. (Ex. 5).
Respectfully submitted this 21st day of December, 2012.
Attorneys for Plaintiffs:
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 emersino@thomasmore.org s/ Richard Thompson_____________ Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 rthompson@thomasmore.org
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CERTIFICATE OF SERVICE I hereby certify that on December 21, 2012, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by ordinary U.S. Mail and faxed upon all parties for whom counsel has not yet entered an appearance electronically: Bradley Humphreys Trial Attorney Civil Division Federal Programs Branch United States Department of Justice 20 Massachusetts Ave. NW Washington, DC 20001 Tel: (202) 514-3367 Fax: (202) 616-8470 Counsel for Defendants
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886)
26

 
 2:12-cv-15488-LPZ-MJH Doc # 20 Filed 01/08/13 Pg 1 of 38 Pg ID 432

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DOMINO’S FARMS CORPORATION; and )

THOMAS MONAGHAN, Owner of

)

Domino’s Farms Corporation,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of the ) Case No. 2:12-cv-15488

United States Department of Health and

)

Human Services; UNITED STATES

) PLAINTIFFS’ MOTION PRELIMINARY

DEPARTMENT OF HEALTH AND

) INJUNCTION

HUMAN SERVICES; HILDA SOLIS,

)

Secretary of the United States Department of ) Judge Lawrence P. Zatkoff

Labor; UNITED STATES DEPARTMENT )

OF LABOR; TIMOTHY GEITHNER,

) Magistrate Judge Michael Hluchaniuk

Secretary of the United States Department of )

the Treasury; and UNITED STATES

)

DEPARTMENT OF THE TREASURY,

)

)

Defendants.

)

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001
Attorneys for Plaintiffs

STUART F. DELERY Acting Assistant Attorney General
BARBARA L. McQUADE United States Attorney Eastern District of Michigan
SHEILA M. LIEBER Deputy Branch Director
BRADLEY P. HUMPHREYS Trial Attorney, VA Bar No. 83212 Civil Division, Federal Programs Branch United States Department of Justice 20 Massachusetts Ave. NW Washington, DC 20001 Tel: (202) 514-3367 Fax: (202) 616-8470 E-Mail: bradley.p.humphreys@usdoj.gov

Attorneys for Defendants

2:12-cv-15488-LPZ-MJH Doc # 20 Filed 01/08/13 Pg 2 of 38 Pg ID 433
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs Domino’s Farms Corporation and Thomas Monaghan (collectively “Plaintiffs”), by and through their undersigned counsel, hereby move this Court to convert its Temporary Restraining Order into a Preliminary Injunction pursuant to Fed. R. Civ. P. 65(a) in order to prevent irreparable injury to Plaintiffs’ fundamental rights and interests, and state as follows.
1. Plaintiffs moved for a Temporary Restraining Order (Doc. #8) on December 21, 2012. 2. Defendants responded on December 25, 2012. 3. This Court expeditiously reviewed the pleadings from all parties and granted Plaintiffs’
Motion for a Temporary Restraining Order on December 30, 2012. (Doc. #17). 4. In granting Plaintiffs’ Motion for a Temporary Restraining Order, this Court found that
Plaintiffs satisfied all of the requirements for a temporary restraining order. (Doc. #17). 5. “The factors to be weighed before issuing a TRO are the same as those considered for
issuing a preliminary injunction.” Monaghan v. Sebelius, 2012 U.S. Dist. LEXIS 182857, 6-7 (E.D. Mich. Dec. 30, 2012) (citing Workman v. Bredesen, 486 F.3d 896, 904-05 (6th Cir. 2007)). 6. Therefore, for the reasons set forth more fully below, Plaintiffs hereby request that this Court convert its Temporary Restraining Order into a Preliminary Injunction enjoining the enforcement of Defendants’ Health and Human Services Mandate (hereinafter “HHS Mandate”) which violates Plaintiffs’ 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.
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7. 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 attached hereto.
8. Pursuant to Local Rule 7.1 and Local Rule 65.1 Plaintiffs sought concurrence in the relief requested by this Motion. The parties did confer, but Defendants did not agree for the entrance of the Preliminary Injunction without a motion to the Court.
9. In accordance with Local Rule 7.1(f)(2), the Court will hold a hearing on this Motion unless the judge orders submission and determination without hearing.
10. In light of this Court previous review of the very facts and issues presented in this motion and rendering its thorough opinion on said facts and issues, Plaintiffs assert that a hearing is unnecessary.
Respectfully submitted this 8th of January, 2013. Attorneys for Plaintiffs: THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886) Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Blvd. P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 emersino@thomasmore.org
3

2:12-cv-15488-LPZ-MJH Doc # 20 Filed 01/08/13 Pg 4 of 38 Pg ID 435 CERTIFICATE OF SERVICE
I hereby certify that on January 8, 2013, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by ordinary U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically: None
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886)
4

2:12-cv-15488-LPZ-MJH Doc # 20 Filed 01/08/13 Pg 5 of 38 Pg ID 436 ISSUE PRESENTED
I. Whether denying Plaintiffs the ability to offer health insurance without a mandate from the government which forces the Plaintiffs to provide health insurance that violates their sincerely held religious beliefs causes irreparable harm sufficient to warrant injunctive relief.
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2:12-cv-15488-LPZ-MJH Doc # 20 Filed 01/08/13 Pg 6 of 38 Pg ID 437
CONTROLLING AUTHORITY American Pulverizer Co., et al. v. Dep’t of Health & Human Servs, et al., No. 12-3459, slip op. (W.D. Mo. December 20, 2012) Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) Conestoga Wood Specialities Corp. v. Sebelius, No. 12‐6744, slip op. (E.D. Pa. Dec. 28, 2012) Elrod v. Burns, 427 U.S. 347 (1976) Legatus, et al. v. Sebelius, et al., No. 12-12061, slip op. (E.D. Mich. October 31, 2012) Korte, et al. v. Sebelius, et al., No. 12-3841, Order (7th Cir. Dec. 28, 2012) Newland, et al. v. Sebelius, et al., No. 12-1123, slip op. (D. Colo. July 27, 2012) O’Brien v. U.S. Dep’t of Health & Human Servs., No. 12-3357, order (8th Cir. November 28, 2012) Sherbert v. Verner, 374 U.S. 398 (1963) Tyndale House Publishers, Inc. v. Sebelius, et al., No. 12-1635, slip op. (D.D.C. Nov. 16, 2012) Wisconsin v. Yoder, 406 U.S. 205 (1972)
6

2:12-cv-15488-LPZ-MJH Doc # 20 Filed 01/08/13 Pg 7 of 38 Pg ID 438

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

DOMINO’S FARMS CORPORATION; and )

THOMAS MONAGHAN, Owner of

)

Domino’s Farms Corporation,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of the ) Case No. 2:12-cv-15488

United States Department of Health and

)

Human Services; UNITED STATES

) BRIEF IN SUPPORT OF PLAINTIFFS’

DEPARTMENT OF HEALTH AND

) MOTION FOR PRELIMINARY

HUMAN SERVICES; HILDA SOLIS,

) INJUNCTION

Secretary of the United States Department of )

Labor; UNITED STATES DEPARTMENT ) Judge Lawrence P. Zatkoff

OF LABOR; TIMOTHY GEITHNER,

)

Secretary of the United States Department of ) Magistrate Judge Michael Hluchaniuk

the Treasury; and UNITED STATES

)

DEPARTMENT OF THE TREASURY,

)

)

Defendants.

)

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001
Attorneys for Plaintiffs

STUART F. DELERY Acting Assistant Attorney General
BARBARA L. McQUADE United States Attorney Eastern District of Michigan
SHEILA M. LIEBER Deputy Branch Director
BRADLEY P. HUMPHREYS Trial Attorney, VA Bar No. 83212 Civil Division, Federal Programs Branch United States Department of Justice 20 Massachusetts Ave. NW Washington, DC 20001 Tel: (202) 514-3367 Fax: (202) 616-8470 E-Mail: bradley.p.humphreys@usdoj.gov

Attorneys for Defendants

2:12-cv-15488-LPZ-MJH Doc # 20 Filed 01/08/13 Pg 8 of 38 Pg ID 439

PLAINTIFFS’BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

TABLE OF CONTENTS

Page

TABLE OF CONTENTS................................................................................................................. i

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION ...........................................................................................................................1

FACTUAL BACKGROUND ..........................................................................................................2

ARGUMENT ...................................................................................................................................9

A. Plaintiffs’ Likelihood of Success on the Merits...................................................................9

i. The HHS Mandate violates the Religious Freedom Restoration Act ..........................................................................................................................10

1. The HHS Mandate substantially burdens Plaintiffs’ free exercise of religion...................................................................................................13

2. The HHS Mandate fails to use the least restrictive means and fails to justify a compelling interest...........................................................14

ii. The HHS Mandate violates the First Amendment to the United States Constitution, Free Exercise Clause ........................................................................15

1. The HHS Mandate is not neutral nor generally applicable, and fails strict scrutiny ...............................................................................18

iii. The HHS Mandate violates the First Amendment to the Constitution, Free Speech and Expressive Association...............................................................19

B. Plaintiffs Will Suffer Irreparable Harm Without Injunctive Relief ...................................22

C. Granting a Preliminary Injunction Will Cause No Substantial Harm to Others................23

D. The Impact of a Preliminary Injunction on the Public Interest Favors Granting the Injunction ......................................................................................................24

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CONCLUSION ..............................................................................................................................25 CERTIFICATE OF SERVICE ......................................................................................................26

Cases

TABLE OF AUTHORITIES

Page

Abood v. Detroit Board of Education, 431 U.S. 209 (1977).......................................................................................................................19

American Pulverizer Co., et al. v. Dep’t of Health & Human Servs, et al., No. 12-3459, slip op. (W.D. Mo. December 20, 2012) ...................................................................2

Bowen v. Roy, 476 U.S. 693 (1986) ......................................................................................................................16

Boy Scouts of America v. Dale, 530 U.S. 640 (2000).......................................................................................................................20

Braunfeld v. Brown, 366 U.S. 599 (1961).......................................................................................................................11

Brown v. Entm’t merchs. Ass’n, 131 S. Ct. 2729 (June 27, 2011) ....................................................................................................13

Capitol Square Rev. & Adv. Bd. V. Pinette, 515 U.S. 753 (1995).......................................................................................................................19

City of Boerne v. Flores, 521 U.S. 507 (1997) ......................................................................................................................13

Conestoga Wood Specialities Corp. v. Sebelius, No. 12‐6744, slip op. (E.D. Pa. Dec. 28, 2012) ………………………………………………......3

Connection Distributing Co. v. Reno, 154 F.3d 288 (6th Cir. 1998) ................................................................................................ passim

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).............................................................................................................1, 15, 16

Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474 (6th Cir. 1995) .........................................................................................................23

Elrod v. Burns, 427 U.S. 347 (1976).................................................................................................................21, 22
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Employment Div. Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990)...........................................................................................................10, 15, 16
G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) .........................................................................................................23
Gonzales v. O Centro Espirita Beneficente Uniao de Vegetal, 546 U.S. 418 (2006).............................................................................................................1, 10, 13
Healy v. James, 408 U.S. 169 (1972).......................................................................................................................19
Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995).......................................................................................................................21
Keller v. State Bar of California, 496 U.S. 1 (1990)...........................................................................................................................19
Korte, et al. v. Sebelius, et al., No. 12-3841, Order (7th Cir. Dec. 28, 2012) ……………………………………………………..3
Legatus, et al. v. Sebelius, et al., No. 12-12061, slip op. at 13 (E.D. Mich. October 31, 2012) ........................................2, 12, 14, 22
McDaniel v. Paty, 435 U.S. 618 (1978).......................................................................................................................15
Murdock v. Pennsylvania, 319 U.S. 105 (1943).......................................................................................................................18
NAACP v. Alabama, 357 U.S. 449 (1958).......................................................................................................................19
Newland, et al. v. Sebelius, et al., No. 12-1123, slip op. at 17-18 (D. Colo. July 27, 2012) ...............................................2, 10, 13, 17
Newsome v. Norris, 888 F.2d 371 (6th Cir. 1989) .........................................................................................................22
O’Brien v. U.S. Dep’t of Health & Human Servs., No. 12-3357, order (8th Cir. November 28, 2012) ..........................................................................2
Roberts v. United States Jaycees, 468 U.S. 609 (1984).......................................................................................................................19
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Sherbert v. Verner, 374 U.S. 398 (1963)...........................................................................................................10, 11, 12 Southerland v. Fritz, 955 F. Supp. 760 (E.D. Mich. 1996)................................................................................................9 Tyndale House Publishers, Inc. v. Sebelius, et al., No. 12-1635, slip op. (D.D.C. Nov. 16, 2012).................................................................................2 W. Va. State Bd. Of Educ. v. Barnette, 319 U.S. 624 (1943).........................................................................................................................9 Ward v. Polite, 667 F.3d 727 (6th Cir. 2012) ........................................................................................................17 Wisconsin v. Yoder, 406 U.S. 205 (1972)...........................................................................................................10, 11, 12 Wooley v. Maynard, 435 U.S. 705 (1977).......................................................................................................................20 Workman v. Bredesen, 486 F.3d 896 (6th Cir. 2007) ...........................................................................................................1
Statutes and Other Authorities 26 U.S.C. § 4980D ........................................................................................................................12 26 U.S.C. § 4980H ....................................................................................................................8, 12 26 U.S.C. § 5000A(d)(2)(A)(i)-(ii) ...........................................................................................6, 17 42 U.S.C. § 2000bb ................................................................................................................10, 15 42 U.S.C. § 2000bb-1(a) ..............................................................................................................10 42 U.S.C. § 2000bb-1(b) ........................................................................................................10, 12 42 U.S.C. § 2000cc-5(7)(A) .........................................................................................................12 42 U.S.C. § 300gg-13(a)(1) ............................................................................................................5 42 U.S.C. § 300gg-13(a)(4) ........................................................................................................4, 5
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42 U.S.C. § 18011(a)(2) ............................................................................................................6, 18
Regulations 75 Fed. Reg. 41726 (2010) .............................................................................................................5 76 Fed. Reg. 46621 (published Aug 3, 2011) .................................................................................5 77 Fed. Reg. 8725 (Feb. 15, 2012) ..........................................................................................4, 5, 7 26 C.F.R. § 54.9815-1251T .......................................................................................................6, 18 29 C.F.R. § 2590.715-1251........................................................................................................6, 18 45 C.F.R. § 147.130 .....................................................................................................................4, 5 45 C.F.R. § 147.130(a)(iv)(A) ...............................................................................................6, 7, 18 45 C.F.R. § 147.130(a)(iv)(B) ...............................................................................................6, 7, 18 45 C.F.R. § 147.130(a)(1)(iv) ......................................................................................................4, 5 45 C.F.R. § 147.140 ...................................................................................................................6, 18
Other Authorities http://www.hrsa.gov/womensguidelines......................................................................................4, 5
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INTRODUCTION Plaintiffs Domino’s Farms and Thomas Monaghan bring this motion for a preliminary injunction to enjoin the unconstitutional and illegal directives of the HHS Mandate. This motion is subsequent to this Court granting temporary relief from the HHS Mandate via a temporary restraining order on December 30, 2012. (Doc. #17). Plaintiffs seek for the conversion of the temporary restraining order into a preliminary injunction. Plaintiffs raise the same arguments originally presented in their motion for a temporary restraining order, as “[t]he factors to be weighed before issuing a TRO are the same as those considered for issuing a preliminary injunction.” (Doc. #17 at 4-5) (citing Workman v. Bredesen, 486 F.3d 896, 904-05 (6th Cir. 2007)). Without injunctive relief, the Defendants are forcing businesses and organizations which hold sincerely held religious beliefs to violate those beliefs by supplying contraceptive and abortifacient coverage. 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. The burden forced on the Plaintiffs cannot be justified by the Defendants as using the least restrictive means or furthering a compelling interest. The Defendants offer numerous secular and even religious exemptions to the HHS Mandate, but fail to offer the same respect to the Catholic beliefs of the Plaintiffs—showing that Defendants either care so little about those professing Catholic beliefs that they will not be bothered to address their concerns or showing that Defendants are patently discriminating against and disrespecting those holding Catholic beliefs. Neither provides the Defendants with a constitutional justification for violating the law.
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The scheme of exemptions imposed by the Defendants is not neutral nor generally applicable. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993); Gonzales v. O Centro Espirita Beneficente Uniao de Vegetal, 546 U.S. 418, 432-87 (2006); see also Newland, et al. v. Sebelius, et al., No. 12-1123, slip op. (D. Colo. July 27, 2012); Tyndale House Publishers, Inc. v. Sebelius, et al., No. 12-1635, slip op. (D.D.C. Nov. 16, 2012). Defendants additionally seek to violate Plaintiffs’ freedom of speech through the counseling that the HHS Mandate requires.
Defendants’ illegal mandate is a threat to the Plaintiffs because, but for the relief of this Court, compliance became mandatory as of January 1, 2013. If this Court does not continue its injunctive relief, Defendants will be irreparably harmed. Under the HHS Mandate, Plaintiffs are forced to choose between violating their religious beliefs or violating federal law. Plaintiffs Domino’s Farms and Thomas Monaghan could face penalties for noncompliance of the law with fines of $2,000 per employee per year at minimum. The fines are even more insurmountable if Plaintiffs Domino’s Farms and Thomas Monaghan decided to offer insurance without the objectionable coverage. If Plaintiffs choose to violate their religious beliefs and offer health insurance in compliance with the Mandate, Plaintiffs and all of their employees will be forced to switch health care plans. These employees may then be forced to switch to an insurance plan they may not want, to potentially switch doctors, and to potentially pay higher premiums.
Being forced to violate one’s sincerely held religious beliefs is a severe burden on the Plaintiffs. Facing imminent, irreparable harm to their religious freedom and Constitutional rights, Plaintiffs seek injunctive relief from the HHS Mandate. Several courts thus far, including the Eastern District of Michigan, have enjoined the HHS Mandate for for-profit companies indistinguishably situated and structured to the Plaintiffs. See Legatus, et al. v. Sebelius, et al.,
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No. 12-12061, slip op. (E.D. Mich. October 31, 2012); Korte, et al. v. Sebelius, et al., No. 123841, Order (7th Cir. Dec. 28, 2012); O’Brien v. U.S. Dep’t of Health & Human Servs., No. 123357, order (8th Cir. November 28, 2012); American Pulverizer Co., et al. v. Dep’t of Health & Human Servs, et al., No. 12-3459, slip op. (W.D. Mo. December 20, 2012); Conestoga Wood Specialities Corp. v. Sebelius, No. 12‐6744, slip op. (E.D. Pa. Dec. 28, 2012); Newland, et al. v. Sebelius, et al., No. 12-1123, slip op. (D. Colo. July 27, 2012); Tyndale House Publishers, Inc. v. Sebelius, et al., No. 12-1635, slip op. (D.D.C. Nov. 16, 2012).
FACTUAL BACKGROUND Domino’s Farms Corporation is a for-profit, and is treated as a subchapter S corporation for income tax purposes. (Monaghan Decl. at ¶ 3 at Ex. 2; Leipold Decl. at ¶ 10 at Ex. 1). Plaintiff Domino’s Farms is incorporated under the laws of Michigan. (Monaghan Decl. at ¶ 2 at Ex. 2). Plaintiff Thomas Monaghan is the owner, sole shareholder, and sole director of Domino’s Farms. (Monaghan Decl. at ¶¶ 13, 14 at Ex. 2). Plaintiff Domino’s Farms Corporation is the property management company for Domino’s Farm Office Park, LLC and DF Land Development, LLC. (Monaghan Decl. at ¶ 4 at Ex. 2). Domino’s Farms Office Park, LLC is a premier office park, home to over fifty successful corporations, professional firms, non-profits, and entrepreneurial businesses. (Monaghan Decl. at ¶ 5 at Ex. 2). Domino’s Farms Office Park is 937,203 sq. ft. and Plaintiff Domino’s Farms provides numerous first class services and amenities throughout. (Monaghan Decl. at ¶ 6 at Ex. 2). Some of the amenities and services Domino’s Farms offers to its tenants include an on-site Catholic chapel, dining and catering, a bistro, a fitness center, and Catholic bookstore. (Monaghan Decl. at ¶ 7 at Ex. 2). The on-site chapel offers Mass four times daily and twenty three times a week. (Monaghan Decl. at ¶ 8 at Ex. 2). Domino’s Farms also offers several in-
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house services, including on-site property maintenance, a twenty-four hour work order request system, twenty-four hour security, telephone and data/internet services, maintenance and housekeeping, office suite build-outs and enhancements, and secure loading and storage. (Monaghan Decl. at ¶ 9 at Ex. 2). Plaintiffs employ 45 full-time employees. Plaintiffs also employ 44 part-time employees, with regular part-time employees working approximately 28,800 hours per year. (Monaghan Decl. at ¶ 10 at Ex. 2).
Plaintiffs align their beliefs with Pope Paul VI’s 1968 encyclical Humanae Vitae, which states “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception—is a grave sin. (Monaghan Decl. at ¶¶ 12-15, 24-25, 31 at Ex. 2; Leipold Decl. at ¶ 14 at Ex. 1). Plaintiffs subscribe to authoritative Catholic teaching regarding the proper nature of health care and medical treatment. For instance, Plaintiffs believe, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.” Id. Plaintiffs do not believe that contraception or abortion properly constitute health care, and involve immoral practices and the destruction of innocent human life. (Monaghan Decl. at ¶¶ 24-25 at Ex. 2).
Due to these beliefs, Plaintiffs offer an insurance policy which specifically excludes coverage for contraception, sterilization, abortion, and abortifacients. (Leipold Decl. at ¶¶ 13-14 at Ex. 1; Monaghan Decl. at ¶ 23, 31-34 at Ex. 2). Plaintiffs designed its group health insurance plan through the Ave Maria Human Resources and Blue Cross/Blue Shield of Michigan which
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specifically excludes abortion, abortifcients, sterilization, and contraception from its insurance plan. (Leipold Decl. at ¶¶ 13-14 at Ex. 1; Monaghan Decl. at ¶ 23, 31-34 at Ex. 2).
However on January 1, 2013, Plaintiffs lose the right to make health care insurance decisions in line with their Catholic views. (Leipold Decl. at ¶¶ 12, 15 at Ex. 1; Monaghan Decl. at ¶ 35-37 at Ex. 2). On January 1, 2013, the Health and Human Services Mandate of the Affordable Care Act (“HHS Mandate”) will go into effect against the Plaintiffs, and force Plaintiffs to pay, fund, contribute, provide, or support artificial contraception, sterilization, abortion, abortifacients or related education and counseling, in violation of their Constitutional rights and deeply held religious beliefs beginning at the end of their plan year. 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).
The Affordable Care Act called for health insurance plans to provide coverage and “not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines” and directed the Secretary of the United States Department of Health and Human Services, Defendant Sebelius, to determine what would constitute “preventative care.” 42 U.S.C § 300gg-13(a)(4). Defendants United States Health and Human Services, United States Department of Treasury, and United States Department of Labor, published an interim final rule under the Affordable Care Act. 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. 1 Id. Prior to adopting those
1 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
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guidelines, Defendants accepted public comments. Upon information and belief, a large number of groups filed comments, warning of the potential conscience implications of requiring religious individuals and groups to pay for contraception, abortion, 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 Food and Drug Administration-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 (the “HHS Mandate”). 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). All FDAapproved contraceptives included contraception, abortion, and abortifacients such as birthcontrol pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; and ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures. (http://www.hrsa.gov/womensguidelines).
The HHS 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 “preventative care” by making available and subsidizing contraception, abortion, and abortifacients such as the “morning-after pill,” “Plan B,” and “ella.” The HHS Mandate also requires group health care plans and insurance issuers to provide education and counseling for all women beneficiaries with
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 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.
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reproductive capacity—even if paying for or providing such “services” violates one’s consciences and deeply held religious beliefs.
The Affordable Health Care Act and the HHS Mandate include a number of exemptions; however, Plaintiffs do not fall under any of these exemptions. 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 nonprofit 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 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).
Neither of Plaintiffs’ health insurance plans is “grandfathered.” (Leipold Decl. at ¶¶ 7-8 at Ex. 1; Monaghan Decl. at ¶ 38 at Ex. 2).2 Plaintiffs do not qualify for the “religious employer” exemption contained in 45 C.F.R. § 147.130 (a)(iv)(A) and (B). (Leipold Decl. at ¶ 9
2 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) Legatus does not take the position that its health care plan is a grandfathered plan and thus does 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; (Leipold Decl. at ¶¶ 7-8 at Ex. 1).
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at Ex. 1).3 The HHS Mandate indicates that the Health Resources and Services Administration (“HRSA”) “may” grant religious exemptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A). Plaintiffs cannot be considered for such an exemption as Domino’s Farms is a for-profit business. (Leipold Decl. at ¶ 10 at Ex. 1; Monaghan Decl. at ¶ 40 at Ex. 2).
On January 20, 2012, Defendant Sebelius announced that there would be no change to the religious exemption. (Ex. 6). She added that “[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,” on the condition that those employers certify they qualify for the extension. This announcement provided no relief to the Plaintiffs. Plaintiffs have not applied, as a for-profit company could not even be considered for the temporary safe-harbor provision. 77 Fed. Register 8725 (Feb. 15, 2012)
Defendant Sebelius also announced on January 20, 2012 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,” inherently acknowledging that contraceptive services are readily available without mandating Plaintiffs subsidize them. Yet, Defendants have forced the Plaintiffs to face this decision: comply with their deeply held religious beliefs or comply with federal law.
3 The HHS Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
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Plaintiffs’ plan year begins on January 1, 2013. (Leipold Decl. at ¶ 12 at Ex. 1; Monaghan Decl. at ¶¶ 50, 53 at Ex. 2). Without the injunctive relief of this Court January 1, 2013, Plaintiffs would be forced to choose: comply with the HHS Mandate and violate their deeply held religious beliefs, or disobey federal law and incur the consequences. If Plaintiffs were to decide to terminate health care entirely in order to comply with their deeply held religious beliefs, the Plaintiffs face severe burdens. Plaintiffs face enormous penalties. Upon not providing insurance to its employees, Plaintiffs would incur a $2,000 annual fine per employee, of which they have approximately 170 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.
All Plaintiffs would face substantial competitive disadvantages upon discontinuing employee health insurance in that the Plaintiffs would no longer be able to offer health care and would face disadvantages in employee recruitment and retention. Plaintiffs and their employees would be forced to seek expensive insurance on the private market. All Plaintiffs wish to do is simply continue providing health insurance in compliance with their sincere and deeply held religious beliefs, as they currently do. (Leipold Decl. at ¶¶ 20-22 at Ex. 1; Monaghan Decl. at ¶¶ 48-49 at Ex. 2). Without immediate relief from this Court, the Plaintiffs must choose between abandoning their faith to comply with federal law or violating federal law and incurring enormous consequences. (Leipold Decl. at ¶ 13-22 at Ex. 1; Monaghan at ¶¶ 50-56 at Ex. 2).
ARGUMENT The standard for issuing a preliminary injunction in this Circuit is well established. In Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998), the court stated: In determining whether or not to grant a preliminary injunction, a district court considers four factors: (1) the plaintiff’s likelihood of success on the merits; (2)
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whether the plaintiff could suffer irreparable harm without the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of the injunction on the public interest. Id.; see also Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007). Typically, the reviewing court will balance these factors, and no single factor will necessarily be determinative of whether or not to grant the injunction. Connection Distributing Co., 154 F.3d at 288. However, because this case deals with a violation of Plaintiffs’ First Amendment rights, the crucial and often dispositive factor is whether Plaintiffs are likely to prevail on the merits. Id. A. Plaintiffs’ Likelihood of Success on the Merits It is not surprising that in our country founded by individuals, who sought refuge from religious persecution, the Supreme Court of our country has succinctly avowed, If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added). The statement written by Justice Jackson in his majority opinion is considered one of the Court's greatest statements about our fundamental freedoms established by the Bill of Rights. It is upon this backdrop, and resting upon this body of jurisprudence built upon deference to the inalienable freedom of religion, that the constitutionality of the HHS Mandate must be decided.
i. The HHS Mandate violates the Religious Freedom Restoration Act. Congress enacted the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. (hereinafter “RFRA”), in response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), where, in upholding a generally applicable law that burdened the sacramental use of peyote, the Supreme Court held that the First Amendment's Free Exercise Clause did not require the court to engage in a case-by-
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case assessment of the religious burdens imposed by facially constitutional laws, id. at 883-90. Congress, by enacting RFRA three years after the decision in Smith, purposefully adopted a statutory rule comparable to the constitutional rule rejected in Smith.
RFRA strictly prohibits the Federal Government from substantially burdening a person's exercise of religion, "even if the burden results from a rule of general applicability," 42 U.S.C. § 2000bb-1(a), 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." 42 U.S.C. § 2000bb-1(b). See also Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (holding that RFRA applies to the federal government); Newland, et al. v. Sebelius, et al., No. 12-1123, slip op. at 17-18 (D. Colo. July 27, 2012) (granting preliminary injunction from HHS Mandate due to violation of RFRA) (Ex. 7).
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. In Sherbert the 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 (“Government may
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neither compel affirmation of a repugnant belief, nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, nor employ the taxing power to inhibit the dissemination of particular religious views.”) (internal citations omitted).
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 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).
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1. The HHS Mandate substantially burdens Plaintiffs’ free exercise of religion.
Plaintiffs’ operation of their health insurance plans according to their religious beliefs is the “exercise of religion” under the 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 the Catholic Church, Plaintiffs’ sincerely held religious beliefs prohibit them from providing or purchasing health insurance coverage for contraception, abortion, abortifacients, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. The HHS Mandate creates government-imposed coercive pressure on Plaintiffs to purchase insurance and provide 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 Domino’s Farms and Thomas Monaghan 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 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, et al. v. Sebelius, et al., 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 (finding “a fine imposed against appellant” to be a quintessential burden). The HHS Mandate imposes a substantial burden on Plaintiffs’ religious exercise by forcing Plaintiffs to violate their deeply held religious beliefs and the teachings of the Catholic Church to which they belong.
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2. The HHS Mandate fails to use the least restrictive means and 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 the Defendants, not the 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, the 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). The 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 to the solution.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (June 27, 2011). The government bears the burden of proof and “ambiguous proof will not suffice.” Id. at 2739. Indeed, one District Court has already ruled that the government failed to meet this burden of proof under the HHS Mandate. 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
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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”).
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. Defendant Kathleen Sebelius herself has admitted that contraceptive services are already readily available “at sites such as community health centers, public clinics, and hospitals with income-based support.” Physicians and pharmacies have traditionally also provided contraceptive and abortifacient services. There is no compelling reason for the HHS Mandate to take the matter one step further by forcing employers, such as the Plaintiffs, objecting upon sincere religious grounds to subsidize these services through the insurance plans they sponsor. If the Defendants were truly concerned with the lack of access to contraceptives and abortifacients in this country, the Defendants could provide those “preventative services” without burdening the Plaintiffs’ religious beliefs. Defendants could provide the “preventative services” directly, Defendants could arrange—although they admit this system is already in place—for the “preventative services” to be made available at community health centers, public clinics, and hospitals, or Defendants could even 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.
Furthermore, the HHS Mandate fails to provide the least restrictive means of furthering Defendants’ stated interests of providing contraceptives and abortifacients, as Defendant Health and Human Services has carved out a number of exemptions for secular purposes such as size of
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employer, the age and grandfathered status of a health insurance plan, waivers for high grossing employers, inter alia. The HHS Mandate imminently threatens violation of the Plaintiffs’ rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
ii. The HHS Mandate violates the First Amendment to the United States Constitution, Free Exercise Clause.
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 (discussing, when not subject to the scrutiny and analysis of RFRA, a facially neutral law of general applicability is permissible notwithstanding any incidental burdens it imposes, so long as the law passes rational basis review). 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)); see also id. at 547 ("It is established in our
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strict scrutiny jurisprudence that 'a law cannot be regarded as protecting an interest 'of the highest order' . . . when it leaves appreciable damage to that supposedly vital interest unprohibited'”) (internal quotation and citation omitted).
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 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.)
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1. The HHS Mandate is not neutral nor generally applicable, and fails strict scrutiny.
Likewise, in the instant case, the HHS Mandate cannot avoid strict scrutiny as the law is not 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”).
Despite being informed in detail of the imposition on Catholic belief beforehand, Defendants designed the Mandate and the religious exemptions to the Mandate in a way that made it impossible for Plaintiffs to comply with their religious beliefs. By design, the Defendants imposed the Mandate on some religious organizations or religious individuals but not on others, resulting in discrimination among religions. The Defendants have created a number of categorical exemptions and individualized exemptions, none of which alleviate the chill imposed on the Plaintiffs’ free exercise of religion. The Affordable Care Act 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).
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 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.
 Non-profit employers who qualify under the narrow exemption of a “religious employer.” 45 C.F.R. § 147.130 (a)(iv)(A) and (B).
The HHS Mandate in its exemptions completely fails to address the constitutional and statutory implications on for-profit, secular employers such as Plaintiffs Domino’s Farms and Thomas Monaghan. Furthermore, there is no exemption available for a member of the Catholic 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 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 anchor onto 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.
iii. The HHS Mandate violates the First Amendment to the Constitution, Free Speech and Expressive Association.
As the United States Supreme Court has long recognized, “spreading one’s religious beliefs” and “preaching the Gospel” are activities protected by the First Amendment. See Murdock v. Pennsylvania, 319 U.S. 105, 110 (1943). Supreme Court precedent also “establishes that private religious speech, far from being a First Amendment orphan, is as fully protected
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under the Free Speech Clause as secular private expression.” Capitol Square Rev. & Adv. Bd. v. Pinette, 515 U.S. 753, 760 (1995).
Additionally, “[a]mong the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition.” Healy v. James, 408 U.S. 169, 181 (1972) (citations omitted). The Sixth Circuit echoed this fundamental understanding of the right to association by stating, “Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of freedom of speech.” Connection Distributing Co., 154 F.3d at 295 (citing NAACP v. Alabama, 357 U.S. 449, 460 (1958).
Indeed, “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984); see also id. at 636 (O’Connor, J., concurring) (“Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement.”).
The government traditionally has not been allowed to force a person—who objects to an activity or conduct on moral grounds—to subsidize, and thereby endorse, conduct that he believes, teaches, or otherwise states is wrong. See, e.g., Keller v. State Bar of California, 496 U.S. 1 (1990) (holding that the government cannot compel state bar members to finance political and ideological activities of which they disagree); Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (holding that the government cannot require state employees to provide financial support for ideological union activities they oppose which are unrelated to collective
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bargaining); Wooley v. Maynard, 430 U.S. 705 (1977) (enjoining a state law which required that plaintiff affix the motto “Live Free or Die” on his license plate when the plaintiff, who was a Jehovah’s Witness, found the motto morally repugnant).
Indeed, the First Amendment protects the right “to hold a point of view different from the majority and to refuse to foster . . . an idea they find morally objectionable.” Wooley v. Maynard, 430 U.S. 705, 715 (1977). Therefore, Plaintiffs should not be compelled by the government to provide education and counseling against their deeply held beliefs. Plaintiffs should not be compelled to subsidize and endorse private conduct that it objects to—especially when Plaintiffs have chosen to express their faith through religious speech and assembly. Plaintiffs will be hard-pressed to effectively and persuasively communicate the Church’s teachings that contraception, abortion, and abortifacients are immoral, yet simultaneously pay for and provide contraceptives. The precepts are irreconcilable.
Based on the speech at issue here (expressing one’s faith), Plaintiffs are also protected by “the First Amendment’s expressive associational right.” See Boy Scouts of America v. Dale, 530 U.S. 640, 648-650 (2000) (finding that the Boy Scouts are protected by the First Amendment and stating, “It seems indisputable that an association that seeks to transmit . . . a system of values engages in expressive activity”). In Boy Scouts of America, the Supreme Court held that “freedom of expressive association” under the Free Speech Clause prohibited the enforcement of a public accommodation law when it required the Boy Scouts be led by a homosexual scoutmaster. Id. at 648. The Supreme Court held that compelling the enforcement of the public accommodation law would “force the organization to send a message, both to the youth members and the world, that the [organization] accepts homosexual conduct as a legitimate form of behavior.” Id. at 653. Correspondingly, in Hurley v. Irish-American Gay, Lesbian & Bisexual
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Group, 515 U.S. 557 (1995), the Supreme Court held that the First Amendment gave the plaintiffs, organizers of a private St. Patrick’s Day parade, the right to exclude a homosexual group from the parade, when the plaintiffs believed that the group’s presence would communicate a message about homosexual conduct to which the plaintiffs objected. The First Amendment protected the plaintiffs’ right “not to propound a particular point of view,” id. at 575, and the Supreme Court protected the “principle of speaker’s autonomy,” id. at 580.
Since the First Amendment through its free speech and expressive association provisions protects nonreligious organizations based upon moral objections to exclude individuals whose mere presence was thought to send an objectionable message, then reasonably the Court should protect the free speech and association of the Plaintiffs who object to subsidizing and supporting certain messages and conduct based upon their deeply held religious beliefs. The compelled subsidization and support of contraceptives, abortion, and abortifacients in the instant case strikes at the heart of one’s ability to communicate unambiguous moral teachings and religious beliefs, and one’s ability to form associations that maintain adherence to those teachings.
The Defendants cannot compel speech and association they find favorable, but is volative of the Plaintiffs’ religious beliefs. 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. And it is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976);
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Legatus, slip op. at 26 (holding the HHS Mandate causes irreparable harm to First Amendment rights, “The potential for harm to Plaintiffs exists, and with the showing Plaintiffs have made thus far of being able to convincingly prove their case at trial, it is properly characterized as irreparable.”)(emphasis added); see also Connection Distributing Co., 154 F.3d at 288 (quoting Elrod); Newsome v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) (“The Supreme Court has unequivocally admonished that even minimal infringement upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.” (citing Elrod)).
Additionally, Plaintiffs will suffer financial harm. Plaintiffs Domino’s Farms and Thomas Monaghan face per employee fines for noncompliance with the HHS Mandate. 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. Plaintiffs will incur costs and expenses due to the enforcement of the HHS Mandate. If an injunction does not issue, Plaintiffs will be forced to violate their religious beliefs or potentially forfeit health insurance.
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’ First
Amendment freedoms and Plaintiffs’ freedom of religion are at issue, and the deprivation of these rights, 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. See Connection Distributing Co., 154 F. 3d at 288; see also Legatus, slip op. at 28 (holding that the HHS Mandate should be enjoined, “The Government will suffer some, but comparatively minimal
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harm if the injunction is granted. . . . The balance of harms tips strongly in Plaintiffs’ favor.”). The Defendants already exempt a number of other employers and individuals from the HHS Mandate. Allowing the Plaintiffs an exemption in order to stop a violation of their deeply held religious beliefs fails to cause harm to the Defendants. Any legitimate interest asserted by Defendants or others will remain fully protected by existing provisions of law.
In the final analysis, the question of harm to others as well as the impact on the public interest “generally cannot be addressed properly in the First Amendment context without first determining if there is a constitutional violation. . . .” Connection Distribution Co., 154 F.3d at 288. For if Plaintiffs show that their First Amendment rights have been violated, then the harm to others is inconsequential. As demonstrated, the enforcement of Defendants’ HHS Mandate on Plaintiffs violates the First Amendment; therefore, any “harm” to others is inconsequential.
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 Mandate. As the Sixth Circuit noted, “[I]t is always in the public interest to prevent the violation of a party’s Constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994); see also Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (stating “the public as a whole has a significant interest in ensuring equal protection of the laws and protection of First Amendment liberties”). Aforementioned, the enforcement of Defendants’ HHS Mandate is a direct violation of Plaintiffs’ fundamental rights protected by the First Amendment. Therefore, the public interest is best served by preventing the Defendants from compelling individuals to violate their religious beliefs and rights of conscience, protected by RFRA and the First Amendment.
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In the final analysis, the Defendants’ HHS Mandate violates the Plaintiffs’ fundamental Constitutional rights. The HHS Mandate forces the Plaintiffs to violate their deeply held religious beliefs of their Catholic faith. Without an injunction, Plaintiffs will be irreparably harmed.
CONCLUSION Plaintiffs hereby request that this court issue a preliminary injunction. The HHS Mandate violates both RFRA and the First Amendment. Unless this Court continues its 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. Defendants, conversely, would face no harm from an injunction as the Mandate already exempts millions of other companies and organizations. Plaintiffs seek for this Court to enjoin Defendants’ requirement that Plaintiffs cover contraception, abortifacients, and counseling and education for the same, in their health plans. A form order is attached. (Ex. 3).
Respectfully submitted this 8th day of January, 2013.
Attorneys for Plaintiffs:
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886) Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 emersino@thomasmore.org
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2:12-cv-15488-LPZ-MJH Doc # 20 Filed 01/08/13 Pg 38 of 38 Pg ID 469 CERTIFICATE OF SERVICE
I hereby certify that on January 8, 2013, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by ordinary U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically: None.
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886)
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 2:12-cv-15488-LPZ-MJH Doc # 23-1 Filed 01/29/13 Pg 1 of 26 Pg ID 628

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOMINO’S FARMS CORPORATION; and THOMAS MONAGHAN, Owner of Domino’s Farms Corporation,

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

Case No. 1:12-cv-15488 Honorable Lawrence P. Zatkoff United States District Judge Magistrate Judge Michael Hluchaniuk
/

ATTORNEY GENERAL BILL SCHUETTE’S AMICUS BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001
Attorneys for Plaintiffs

STUART F. DELERY Acting Ass’t Attorney General
BARBARA L. McQUADE United States Attorney Eastern District of Michigan
SHEILA M. LIEBER Deputy Branch Director
BRADLEY P. HUMPHREYS Trial Attorney, VA Bar No. 83212 Civil Division, Federal Programs Branch United States Dep’t of Justice 20 Massachusetts Ave. NW Washington, DC 20001 Tel: (202) 514-3367

Attorneys for Defendants

2:12-cv-15488-LPZ-MJH Doc # 23-1 Filed 01/29/13 Pg 2 of 26 Pg ID 629

TABLE OF CONTENTS

Page

Table of Contents ............................................................................................................ i
Index of Authorities ....................................................................................................... ii
Statement of Interest of Amicus Curiae Attorney General ......................................... 1
Introduction ................................................................................................................... 2
Argument ....................................................................................................................... 4
I. The HHS mandate requiring Domino’s Farms to cover contraception, sterilization, and related services violates the Plaintiffs’ religious liberty under RFRA............................................................................................. 4
A. The HHS mandate to provide contraception imposes a substantial burden on Plaintiffs’ free exercise of religion. ..................... 5
1. The RFRA does not only apply to religious businesses. ................ 8
2. The substantial burden here is not too attenuated. .................... 10
B. The United States does not have a compelling interest in applying this mandate to Plaintiffs, particularly where there are less restrictive means by which it may achieve this end...................... 13
C. RFRA applies to businesses that operate according to religious principles, even if they are not operated by a religious organization. ........................................................................................... 17
Conclusion and Relief Sought ..................................................................................... 20

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INDEX OF AUTHORITIES

Page

Cases
Autocam Corp v. Sebelius, ___ F. Supp. 2d ___, 2012 WL 6845677, * 6-7 (W. D. Mich. December 24, 2012) ..................................................................................................................... 8, 11
Citizens United v. Federal Election Commission, 558 U.S. 310; 130 S. Ct. 876, 900 (2010) ........................................................... 17, 18
Cutter v. Wilkinson, 423 F.3d 579 (6th Cir. 2005) ...................................................................................... 4
Employment Division v. Smith, 494 U.S. 872 (1990) .......................................................................................... 2, 4, 18
First National Bank of Boston v. Bellotti, 435 U.S. 765(1978) ................................................................................................... 18
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ................................................................................ 13, 14, 15, 16
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) ........................................................... 18, 19
Holy Land Foundation for Relief and Development v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) .................................................................................. 18
Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94 (1952) ......................................................................................... 6, 10, 13
Korte v. Sebelius, 2012 WL 6757353, *3 (7th Cir. December 28, 2012) .................................... 9, 13, 19
Legatus v. Sebelius, ___ F. Supp. 2d ___, 2012 WL 5359630, *6 (E. D. Mich. October 31, 2012)8, 10, 14, 16
O'Brien v. U.S. Dep't of Health & Human Services, ___ F. Supp. 2d ___, 2012 WL 4481208, *6 (E.D. Mo. September 28, 2012) .......... 11
People v. DeJonge, 442 Mich 266; 501 N.W.2d 127 (1993)....................................................................... 6
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Sherbert v. Verner, 374 U.S. 398 (1963) ...................................................................................... 4, 6, 7, 10
Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707 (1981) ............................................................................................ 10, 13
United States v. Lee, 455 U.S. 252 (1982) .............................................................................................. 9, 10
Wisconsin v. Yoder, 406 U.S. 205 (1972) ...................................................................................... 4, 6, 7, 10
Statutes 42 U.S.C. § 18021......................................................................................................... 17 42 U.S.C. § 18031(d)(2)(B)(i) ....................................................................................... 17 42 U.S.C. § 2000bb(a) .............................................................................................. 4, 18 42 U.S.C. § 2000bb(a)(2) ................................................................................................ 6 42 U.S.C. § 2000bb(b) .................................................................................................... 4 42 U.S.C. § 2000bb-1.................................................................................................... 18 42 U.S.C. § 2000bb-1(a) ................................................................................................. 4 Mich. Comp. Law § 14.28 .............................................................................................. 1
Other Authorities “March 14 Statement on Religious Freedom and HHS Mandate,”
A Statement of the Administrative Committee of the United States Conference of Catholic Bishops. .............................................................................. 12 “Married Love and the Gift of Life,” approved November 2006 by the United States Conference of Catholic Bishops. ...................................................................................................................... 5 45 C.F.R. § 147.130(A) ................................................................................................. 15 45 C.F.R. § 147.130(B) ................................................................................................. 15 Center for Applied Research (CARA) of Georgetown University, “Frequently Requested Church Statistics.” ............................................................ 15
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2:12-cv-15488-LPZ-MJH Doc # 23-1 Filed 01/29/13 Pg 5 of 26 Pg ID 632 Humanae Vitae, encyclical of Pope Paul VI,
released on July 25, 1968........................................................................................... 5 Table 2b “Employment Size of Employer and Nonemployer Firms, 2007.” .............. 15 Rules Fed. R. Civ. Pro. 7 .......................................................................................................... 1 Constitutional Provisions Mich. Const. art I, § 4 .................................................................................................... 1 US Const, Am I .................................................................................................... passim
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STATEMENT OF INTEREST OF AMICUS CURIAE ATTORNEY GENERAL The Michigan Constitution provides for the protection of religious worship and also protects the religious liberty of Michigan citizens by guaranteeing that “[t]he civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.” Mich. Const. art I, § 4. The claim here was filed by a Michigan business, Domino’s Farms Corporation, which is owned by Thomas Monaghan, and they claim that the HHS Mandate violates their religious liberty under the Religious Freedom Restoration Act and the First Amendment by requiring them to provide certain products and services in their insurance plans over their religious objections. Although the claims are not based on Michigan law, the principle of religious freedom is one of the central values in Michigan law and it implicates the role of the Attorney General, who is the chief legal officer for the State. Consistent with this role, the Attorney General is authorized by Michigan law, Mich. Comp. Law § 14.28, to safeguard the interests of the people of the State when in his judgment this is necessary. In the view of the Attorney General, the HHS Mandate is a substantial burden as applied against the religious practice of these plaintiffs and others like them under RFRA, and there is no compelling interest that justifies this violation. Moreover, there are other less restrictive means by which this may be achieved. The Amicus Curiae Brief of the State of Michigan prepared by the Attorney General is being filed pursuant to Fed. R. Civ. Pro. 7.
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INTRODUCTION “Nothing is more dreaded than the national government meddling with religion.”
John Adams (letter to Benjamin Rush, June 12, 1812) Congress enacted the Religious Freedom Restoration Act (RFRA) in response to Employment Division v. Smith, 494 U.S. 872 (1990), which effectively immunized virtually any statute of general applicability from constitutional challenge. RFRA’s purpose was to restore a system of First Amendment analysis that protected more adequately Americans’ religious liberty. RFRA’s reinvigorated understanding of religious liberty is directly relevant here. Plaintiffs have religious objections to the HHS Mandate’s requirement that Plaintiffs provide certain reproductive products and services, including early abortion-inducing drugs, in the insurance plans to their employees, contrary to the unambiguous teachings of the Catholic Church. Domino’s Farms Corporation is a Michigan business owned by Thomas Monaghan that is run consistent with Catholic principles. Domino’s Farms has designed its health insurance policies with Blue Cross/Blue Shield to exclude contraceptives and other services that violate Plaintiffs’ religious principles. The HHS Mandate requiring Plaintiffs to provide reproductive products and services substantially burdens these principles under RFRA. The United States Government lacks a compelling interest justifying this burden on Plaintiffs or on other businesses that have equally-held religious objections to the HHS Mandate. The Affordable Care Act (“the Act”) includes
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several significant exceptions. The United States cannot contend that the mandate must be applied to all businesses without exception, and to Plaintiffs in particular, when tens of millions of plan participants are already excluded from the mandate’s purview.
Given the strength of the Plaintiffs’ RFRA claim on the merits, the United States is forced to reach for an alternative argument: that RFRA applies only to businesses that are religious in nature and does not apply to secular ones. But this is not so. There is nothing in RFRA that limits its application to businesses that sell religious goods or are operated by a church. A business may be (and often is) animated by religious principles, even if the tasks it performs are secular in nature. This is true whether it is Domino’s Farms that operates a business-office park, a Jewish-owned deli that does not sell non-Kosher foods, a Muslim-owned financial brokerage that will not lend money for interest, or a hotel chain with religious owners who will not carry pornographic broadcasting.
The insidious effect of the United States Government’s argument is to push religious beliefs expressed by the ordinary person or business out of the public square. Religious liberty cannot be confined to the sanctuary and sacristy. Such a truncated view of religion threatens to create a barren public culture, denuded of the religious beliefs of ordinary American citizens. This is an important principle, and it applies to all Americans and to all faiths. Plaintiffs’ motion for preliminary injunction should be granted.
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ARGUMENT
I. The HHS mandate requiring Domino’s Farms to cover contraception, sterilization, and related services violates the Plaintiffs’ religious liberty under RFRA. Under RFRA, Congress has provided for the protection of a person’s free
exercise of religion even from laws of “general applicability”: Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability[.]
42 U.S.C. § 2000bb-1(a). The only exception to this rule is when the government can prove that the burden (1) “is in furtherance of a compelling governmental interest,” and (2) “is the least restrictive means of furthering that compelling interest.” Id.
RFRA’s purpose was to return to the constitutional standards governing the First Amendment before the decision in Smith, 494 U.S. 872 (1990), which “virtually eliminated the requirement that the government justify burdens on religious exercise without compelling justification.” 42 U.S.C. § 2000bb(a). Accord Cutter v. Wilkinson, 423 F.3d 579, 582 (6th Cir. 2005). RFRA codified the “compelling interest” standard for laws of general application that substantially burdened the free exercise of religion. As RFRA itself explains, its purposes are:
(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).
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There are three points the Attorney General advances in this amicus: (1) the HHS Mandate imposes a substantial burden on Plaintiffs’ free exercise of religion; (2) 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 United States could accomplish the objective of guaranteeing access to reproductive services; and (3) the United States’ argument that RFRA and the First Amendment do not apply to secular businesses – only religious ones – violates RFRA’s terms. The Attorney General will emphasize the third point, given its importance to all Michigan citizens, regardless of religious faith.
A. The HHS mandate to provide contraception imposes a substantial burden on Plaintiffs’ free exercise of religion.
Thomas Monaghan has designed a health insurance plan for Domino’s Farms with Blue Cross/Blue Shield of Michigan that specifically excludes contraception, abortion, sterilization, and other services because these products and services would conflict with the teachings of the Catholic Church. (Compl., ¶¶ 33, 50-55.)
The teachings of the Catholic Church against contraception and abortion are clear. See “Married Love and the Gift of Life,” approved November 2006 by the United States Conference of Catholic Bishops.1 See also Humanae Vitae, encyclical of Pope Paul VI, released on July 25, 1968.2 And the courts generally defer to the official statements of religious organizations regarding their doctrines and
1 This document may be found online on the website of the USCCB at http://usccb.org/beliefs-and-teachings/what-we-believe/love-and-sexuality/marriedlove-and-the-gift-of-life.cfm (last visited on January 29, 2013). 2 The encyclical is available on the Vatican’s website at http://www.vatican.va/holy_father/paul_vi/encyclicals/documents/hf_pvi_enc_25071968_humanae-vitae_en.html (last visited January 29, 2013).
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disciplines. See Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America, 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. People v. DeJonge, 501 N.W.2d 127, 136 (Mich. 1993) (internal quotes omitted).
That the federal mandate at issue is a rule of general applicability does not shield it from RFRA’s strict scrutiny. That is why Congress passed RFRA in the first place. “[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).
The two cases that RFRA cites in its text, Sherbert, 374 U.S. 398 (1963), and Yoder, 406 U.S. 205 (1972), each examined state laws of general applicability. In Sherbert, the Supreme Court determined that a South Carolina law that disqualified a Seventh Day Adventist, who refused to work on Saturdays, from unemployment benefits had to yield to her free exercise of her religion. Sherbert, 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. So, too, in Yoder, where the obligation of Wisconsin law was for children to have compulsory education through age 16. Yoder, 406 U.S. at 207. This statute was an unconstitutional burden on Amish children and therefore “beyond the power of the State to control, even under regulations of general applicability.” Id. at 220.
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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 a substantial burden on the plaintiff’s exercise of her religion because she was forced to choose between work and following the precepts of her religion:
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. The same is true here. The HHS Mandate requires Domino’s Farms and its own Thomas Monaghan either to abandon their commitment to Catholic principles or face a yearly fine of $2,000 per employee for failing to provide health insurance for contraception as well as for early abortioninducing drugs. Likewise in Yoder, the Supreme Court determined that the requirement for Amish children to attend compulsory second education would substantially interfere with their religious development by exposing them to “worldly influences.” Yoder, 406 U.S. at 218. It would “contravene[] the basic religious tenets and practices of the Amish faith.” Id. Again, the same is true here. The provision of contraception contravenes the basic religious tenets and practices of the Catholic Church. The courts have split on whether the showing here would constitute a “substantial burden,” even if only examining decisions within the two Michigan federal districts Compare Legatus v. Sebelius, ___ F. Supp. 2d ___, 2012 WL
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5359630, *6 (E. D. Mich. October 31, 2012) (plaintiffs were likely to show the HHS mandate substantially burdens their religious observance), with Autocam Corp v. Sebelius, ___ F. Supp. 2d ___, 2012 WL 6845677, * 6-7 (W. D. Mich. December 24, 2012) (no substantial burden).3
There are two primary arguments that the United States advanced on this point in its answer filed in the response to a request for a TRO: (1) the RFRA does not apply to private, secular for-profit businesses; and (2) any burden here is too attenuated to constitute a “substantial burden.” This Court should reject each point.
1. The RFRA does not only apply to religious businesses. The United States argues that Domino’s Farms cannot complain about the burden because it “elected to organize itself as a secular, for-profit entity and to enter commercial activity[.]” (U.S., Br. in Opp. to TRO, p. 11.) This argument misunderstands the proper inquiry for whether there is a substantial burden on a person’s right to free exercise under RFRA. A person does not lose his right to free exercise of religion by engaging in action in the public sphere. In an order granting a preliminary injunction against the HHS Mandate, the Seventh Circuit expressly rejected the very same argument the government advances here. The controlling point for the court was that the private individuals
3 The U.S. Court of Appeals for the Sixth Circuit denied Autocam’s motion for injunction pending appeal of this decision in a 2-to-1 unpublished order, see Case No. 12-2673, noting that the U.S. Supreme Court had denied a motion to stay in another case and that the divergence of opinion in the district courts established a “possibility” but not necessarily a likelihood of success on the merits. Autocam Corp v. Sebelius, Order dated December 28, 2012, slip op., pp. 2-3. The panel did decide to expedite the appeal.
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would have to violate their conscience in the operation of the business even if these business were secular and for profit:
[The government’s primary argument] ignores that Cyril and Jane Korte are also plaintiffs. Together they own nearly 88% of K & L Contractors. It is a family-run business, and they manage the company in accordance with their religious beliefs. This includes the health plan that the company sponsors and funds for the benefit of its nonunion workforce. 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). The contraception mandate applies to K & L Contractors as an employer of more than 50 employees, and the Kortes would have to violate their religious beliefs to operate their company in compliance with it. Korte v. Sebelius, 2012 WL 6757353, *3 (7th Cir. December 28, 2012) (emphasis added). The same applies here. Thomas Monaghan is the sole owner of Domino’s Farms. Just as the Kortes, the mandate would require Mr. Monaghan to violate his beliefs to operate Domino’s Farms in compliance with the mandate. The case the United States cites to support its claim in response to the TRO (p. 11), United States v. Lee, 455 U.S. 252, 257 (1982), only confirms Plaintiffs’ argument. In Lee, the Supreme Court examined whether the Social Security tax imposed an unconstitutional burden on the Amish, and the Court concluded 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.” Id. at 257. The Court ultimately determined that the Government’s interest were compelling. Id. at 260. Although the right to the free
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exercise of religion had to yield, there was nevertheless a substantial burden imposed on the Amish community.
The danger of the United States’ error here is that it suggests that protections for religious liberty only apply as a category to the private realm and never the public one. The case in point to demonstrate this mistake is Adell Sherbert. She was fired because she would not work on Saturday; the government refused her unemployment benefits for the same reason. Sherbert, 374 U.S. at 401. In contrast to the Amish community in Lee, the State in Sherbert had to yield because it could not demonstrate a compelling interest in enforcing this law against her. This was so even though Ms. Sherbert was not engaged in a religious occupation. A citizen need not leave her religious convictions at the corporate door. That is true for Thomas Monaghan as well. And this same principle applies for a family-owned or closely-held corporation as here that is run consistent with religious principles.
2. The substantial burden here is not too attenuated. Although there are distinctions between Domino’s Farms and Thomas Monaghan and the individuals in Sherbert and Yoder, the better reasoned analysis acknowledges the religious claims of the plaintiffs and defers to the party’s understanding of the religious doctrine. See Legatus, 2012 WL 5359630, *6. This deference is consistent with Supreme Court precedent. See Kedroff, 344 U.S. at 113. See also Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716 (1981) (“it is not within the judicial function and judicial competence to inquire
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whether the petitioner or his fellow worker more correctly perceived the commands of their common faith”).
In contrast, the United States here invites the courts to scrutinize religious claims and determine whether the mandate really is a substantial burden. Such an endeavor invariably requires an investigation of religious doctrine, and here, the teachings of the Catholic Church.
In O’Brien v. U.S. Dep’t of Health & Human Services, ___ F. Supp. 2d ___, 2012 WL 4481208, *6 (E.D. Mo. September 28, 2012), the court determined that the claim was “too attenuated” because the employer merely provides the funds by which employees elect to engage in conduct that violates the religious beliefs of the employer:
[P]laintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. O’Brien, 2012 WL 4481208, *6. The suggestion is that the independent, intervening actions of the employees would absolve the employer of any moral culpability of employees’ claimed transgressions. The district court in Autocam reasoned in the same fashion in determining that there was no substantial burden. Autocam, 2012 WL 6845677, *6-7 (“The incremental difference between providing the benefit directly, rather than indirectly, is unlikely to qualify as a substantial burden on the Autocam Plaintiffs. . . . Standing between the Kennedy Plaintiffs and the decisions some Autocam employees make to procure contraceptive services are not only the
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independent decisions of an employee and the employee’s health care provider, but also the corporate form itself.”)
The United States advances the same legal reasoning here. (U.S., Br. in Opp. to TRO, pp. 3-4) (“Just as Domino’s Farms’s employees have always retained the ability to choose whether to procure contraceptive services by using the salaries the corporation pays them, under the current regulations those employees retain the ability to choose what health services they wish to obtain according to their own beliefs and preferences.”) The danger with this kind of reasoning, of course, is that it attempts to weigh the importance of the doctrine from the standpoint of the religious institution and the individual business owner. And here, the National Conference of Catholic Bishops has stated that that the law is a “mandate to act against our teachings”:
This error in [the government’s] theory has grave consequences in principle and practice. Those deemed by HHS not to be “religious employers” will be forced by government to violate their own teachings within their very own institutions. This is not only an injustice in itself, but it also undermines the effective proclamation of those teachings to the faithful and to the world. “March 14 Statement on Religious Freedom and HHS Mandate,” A Statement of the Administrative Committee of the United States Conference of Catholic Bishops.4 Domino’s Farms’ argument is a straightforward one: that a person has a greater moral obligation if it directly provides the service to the employee or ensures that another entity (an insurer) provides the service than it does in paying an
4 This document may be found at the following website: http://www.usccb.org/issues-and-action/religious-liberty/march-14-statement-onreligious-freedom-and-hhs-mandate.cfm (last visited on January 28, 2013).
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employee a wage and the employee elects to purchase the service. For example, consider a Quaker-owned business’ commitment to pacifism and its owner’s objections to handguns. If there were a mandate that required a business to either provide handguns to its employees for self defense or contract with a weapons supplier to provide a handgun, there would be an arguable moral difference in taking those actions than in paying the employee’s wage. The closer the employer is to the direct provision, the more responsible it is for the conduct taken. See, e.g., Korte, 2012 WL 6757353, *3 (“The religious-liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.”) (emphasis in original). To put it another way, it is one thing for employees to use their paycheck to purchase alcohol. It is an entirely different matter to compel the employer to provide beer.
Moreover, the government’s argument that this moral analysis of Catholic doctrine is wrong runs afoul of the Supreme Court’s admonition not to second guess a religious authority’s understanding of its own doctrine. Kedroff, 344 U.S. at 113; Thomas, 450 U.S. at 716. The HHS mandate, as indicated by the relevant religious officials here, would be a substantial burden on the religious liberty of Domino’s Farms and Thomas Monaghan.
B. The United States does not have a compelling interest in applying this mandate to Plaintiffs, particularly where there are less restrictive means by which it may achieve this end.
In O Centro, the Supreme Court outlined the proper analytical framework for determining whether there is a compelling governmental interest that justifies a
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substantial burden on a person’s religious liberty. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424-31 (2006). The Court was careful to note that this examination requires an inquiry into whether there is a compelling interest to apply the government mandate to the “particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 431. This narrowing of the inquiry damages the United States Government’s claim here, where there is no dispute that the HHS Mandate already contains multiple categories of employers to which the mandate does not currently apply: (1) a narrow exemption for religious organizations; (2) the mandate does not apply to employers with fewer than 50 employees; and (3) a grandfathering provision that shields more than 190 million health plan participants from the mandate’s application. See Newland, 2012 WL 3069154, *7 (“this massive exemption [for grandfathered plans] completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs”). See also Legatus, 2012 WL 5359630, *9 (“About 193 million health plans were in existence on March 23, 2010, and presumably qualified as grandfathered.”).
The United States’s position – that the HHS Mandate requires national uniformity – cannot withstand strict scrutiny. Even excluding the grandfathering exemption on which the Newland court relied, the other exceptions demonstrate the lack of compelling nature in the Government’s claim.
The exception for religious organizations governs “religious employers” that primarily inculcate the religious belief of the religious organization, employ primarily persons who share the tenets of the religious group, and serve persons who share
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that religious faith. 45 C.F.R. § 147.130(A), (B). Just within the Catholic Church, this exception applies to more than 15,000 parishes. Center for Applied Research (CARA) of Georgetown University, “Frequently Requested Church Statistics.”5
As for the exemption regarding 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 In other words, there are tens of millions of U.S. employees whose employers are not required to comply with this contraceptive mandate, not even counting the 190 million plan participants subject to the “grandfathering” provision.
These exemptions defeat the Government’s claim that the federal mandate must be imposed on all other businesses, including Plaintiffs. In O Centro, the Court examined whether the United States violated RFRA by applying the federal Controlled Substances Act to a religious sect that used a plant that contains a hallucinogen in its communion as a sacramental tea. O Centro, 546 U.S. at 423. The compelling interest that the United States 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. The Court rejected this argument, concluding that the Act
5 This report may be found at the CARA website: http://cara.georgetown.edu/CARAServices/requestedchurchstats.html (last visited January 29, 2013). 6 This United States Census Bureau document may be found at: http://www.census.gov/econ/smallbus.html (last visited on January 29, 2013).
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itself contemplated exceptions, since the Attorney General was authorized to grant “waiv[ers]” 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 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 – rings hollow, particularly if this Court examines only Plaintiffs and their employees, as the Supreme Court in O Centro indicated should be done. See Legatus, 2012 WL 5359630 *10 (“The court has no doubt that every level of Government has an interest in promoting public health as a general matter, but remains uncertain that the Government will be able to prove a compelling interest in promoting the specific interests at issue in this litigation.”).
Equally important, there are other less restrictive means the Government could have chosen. As Plaintiffs noted on page 15 of their motion for preliminary injunction, among other suggestions, the United States could provide tax credits to these employers to encourage them to make contraceptive and other services available. The district court in Newland delineated this same point about the various ways in which the Government could directly provide this benefit: “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 the contraception manufacturing industry to give its items away for free.” Newland, 2012 WL 3069154, *7. The strength of this point is underscored by the fact that tax credits
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are the mechanism by which the Act attempts to enable employers with fewer than 50 employees to obtain health care, as noted by the United States itself. See 42 U.S.C. § 18021; § 18031(d)(2)(B)(i).
The United States argues that this suggested approach would “impose considerable costs and burdens” on the government and therefore was “impractical.” (U.S., Br. in Opp. to TRO, p. 22.) But the district court in Newland rejected this same argument for reasons that are equally applicable here:
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, 2012 WL 3069154, *8. At a bare minimum, any “impracticality” of such a government program is outweighed by the violation of Plaintiffs’ religious liberty.
C. RFRA applies to businesses that operate according to religious principles, even if they are not operated by a religious organization.
Given RFRA’s plain application to the HHS Mandate and the United States’ inability to satisfy RFRA’s stringent test, the United States is left to argue that RFRA protects only religious organizations, not secular, for-profit corporations. (U.S., Br. in Opp. to the TRO, pp. 8-13.) The law does not support that claim.
There is no dispute that First Amendment protection for speech and association applies equally to religious and secular organizations. Citizens United v. Federal Election Commission, 558 U.S. 310; 130 S. Ct. 876, 900 (2010) (“The Court has thus rejected the argument that political speech of corporations or other
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associations should be treated differently under the First Amendment simply because such associations are not ‘natural persons.’”). Indeed, the analysis on which the Supreme Court based its decision in Citizens United appears to exclude the Government’s claim that the First Amendment does 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. First National Bank of Boston v. Bellotti, 435 U.S. 765, 780 (1978) (citations omitted; emphasis added). If a corporation is protected as a person under the First Amendment, it follows that a corporation would be a “person” under 42 U.S.C. § 2000bb-1 of RFRA. See 42 U.S.C. § 2000bb(a) (stating that RFRA secures the federal test for protections for the First Amendment before the Smith decision). But see Holy Land Foundation for Relief and Development 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 meaning of RFRA). And on this point, the First Amendment does not distinguish between its protection of the free exercise of religion and its protection of free speech between organizations and individuals or between religious corporations and secular ones. The district court in Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012) adopted the Government’s argument, and determined that secular businesses are not protected by the First
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Amendment and are not protected by RFRA. Id. at 2012 WL 5844972, *8. The court explained:
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 Belloti which is not the province of a general business corporation. Id. This description provides the kind of constrained understanding of religious liberty that caused Congress to pass the RFRA in the first instance. And, of course, after reaching this conclusion, the court then determined that the owners could not invoke the defense of RFRA because the obligations had not been imposed on the owners, but on the business itself. Id. at 1294. The catch-22 nature of this analysis is transparent. The Seventh Circuit rejected this kind of distinction. Korte, 2012 WL 6757353, *3. Consider a Jewish-deli that is privately owned by a Jewish family that decides that it will not sell non-Kosher food. The suggestion that this is a privatelyowned business that has no religious protections because it has engaged in secular commercial business is an impoverished understanding of both the First Amendment and of RFRA. A federal mandate to sell pork would offend the religious practice of such a business and its family owners. The claim otherwise would limit the religious practice to only those entities that are owned by religious institutions or sell exclusively religious goods. But the First Amendment is for everyone, not just for religious organizations.
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This conclusion that secular businesses, particularly a family-owned or

closely-held one, would have its right to religious liberty protected under RFRA and

the First Amendment comports with common sense. On a basic level, a corporation

is a group formed to achieve a particular mission and is comprised of natural

persons. A business may establish religious principles on which to operate its

business even if its mission is secular in nature.

This misguided effort to circumscribe religious liberty to only religious

organizations is similar to confining religious practice to worship, as if religious

principles should not animate a corporation – or a person – in public and

commercial life. It is akin to the error that suggests that only priests or ministers

should express religious views. But this is a misunderstanding of religion and

religious freedom. It is the right of the ordinary person.

CONCLUSION AND RELIEF SOUGHT

The Attorney General asks that this Court grant Plaintiffs’ request for a

preliminary injunction.

Respectfully submitted,
Bill Schuette Attorney General
John J. Bursch Solicitor General

s/ B. Eric Restuccia

Dated: January 29, 2013

B. Eric Restuccia (P49550) Deputy Solicitor General Department of Attorney General P.O. Box 30212 Lansing, MI 48909 restucciae@michigan.gov

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CERTIFICATE OF SERVICE I hereby certify that on January 29, 2013, I electronically filed the foregoing papers with the Clerk of the Court using ECF system which will send notification of such filing to the following: HONORABLE LAWRENCE ZATKOFF MAGISTRATE JUDGE MICHAEL J. HLUCHANIUK ERIN MERSINO, ATTORNEY FOR PLAINTIFFS BRADLEY HUMPHREYS, ATTORNEY FOR DEFENDANTS
Bill Schuette Attorney General s/ B. Eric Restuccia B. Eric Restuccia Deputy Solicitor General Department of Attorney General P.O. Box 30212 Lansing, MI 48909 restucciae@michigan.gov (P49550)
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 2:12-cv-15488-LPZ-MJH Doc # 39 Filed 03/14/13 Pg 1 of 20 Pg ID 825

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS MONAGHAN, and DOMINO’S FARMS CORP.,
Plaintiffs,

Case No. 12-15488 Hon. Lawrence P. Zatkoff

v.

KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, SECRETARY OF LABOR HILDA L. SOLIS, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, and UNITED STATES DEPARTMENT OF TREASURY,

Defendants. _______________________________________/

OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse, in the City of Port Huron, State of Michigan, on March 14, 2013.

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction [dkt 20]. The

motion has been fully briefed, and on January 31, 2013, the Court held oral argument. For the following

reasons, Plaintiffs’ Motion is GRANTED.

II. BACKGROUND

Plaintiff Thomas Monaghan (“ Monaghan”) is t he owner and sole shareholder of Pl aintiff

Domino’s Farms Corp., (“DF”) a secular, for-profit property management company. On D ecember 14,

2012, Plaintiffs filed a c omplaint for declaratory judgment an d injunctive relief regarding whether they

must comply with the Preventive Health Services coverage provision (“mandate”) in the Women’s Health

2:12-cv-15488-LPZ-MJH Doc # 39 Filed 03/14/13 Pg 2 of 20 Pg ID 826

Amendment, 42 U.S.C. § 300 gg–13(a)(4), to the Pa tient Protection and Affordable Care Act of 2010,

(“the ACA”), Pub. L. No. 1 11–148, 124 Stat. 119 (Mar. 23, 2010), as a mended by the He ath Care and

Education Reconciliation Act, Publ. L. No. 1 11–152, 124 Stat. 1029 (Mar . 30 2010). The named

Defendants are the three federal government agencies charged with implementing and administering the

mandate and the individuals heading these agencies: the Department of Health and Human Services and

Secretary Kathleen Sebelius; the Department of the Treasury and Secretary Timothy F. Geithner; and the

Department of Labor and Secretary Hilda L. Solis.

The ACA “aims to increase the number of Americans covered by health insurance and decr ease

the cost of health care.” Nat’l Fed’n. of Indep. Bus. v . Sebelius, 132 S. Ct. 2566, 2580 (2012). In

deciding to i nclude a contraception coverage mandat e, Congress found that: (1) the use of pre ventive

services, including contraception, results in a healt hier population and reduces health ca re costs ( for

reasons related and unrel ated to pregnancy); and ( 2) access to contraception i mproves the social and

economic status of women. See 77 Fed. Reg. 8725, 8727–28 (Feb. 15, 2012).

According to the c ontraception coverage mandate, commencing in plan years af ter August 1,

2012, and unless “grandfa thered” or otherwise exempt, employee group health benefit plans and health

insurance issuers must include covera ge, without cost sharing, for all FDA approved contraceptive

methods, sterilization procedures, and patient education and counseling for all women with reproductive

capacity. See Health Resources and Services Administration (“the HRSA”), Women’s Preventive

Services: Required Health Plan Coverage Guidelines

(available at

http://www.hrsa.gov/womensguidelines/). FDA-approved contraceptive medicines and devices include

barrier methods, implanted devices, hormonal methods, and emergency contraceptive “abortifacients,”

such as “Plan B” (which prevents fertilization of the egg) and “Ella” (which stops or delays release of the

egg). See FDA, Birth Control Guide ( Aug. 2012) (available at www .fda.gov/For

Consumers/ByAudience/ForWomen/ucm18465).
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Employers with at least 50 em ployees that do not comply with the m andate face fines, penalties in the f orm of a tax, and enforcement actions for non-compli ance. See 29 U.S.C. § 1 132(a) (civil enforcement actions by the Depart ment of La bor and insurance plan participants ); 26 U.S.C. § 4980D(a),(b) (penalty of $100 per da y per employee for noncompliance with coverage provisions of the ACA); 26 U.S.C. § 4980H (annual tax assessment for noncompliance with requirement to provide health insurance).” Tyndale House Publishers, Inc. v. Sebelius, No. 12-1635, 2012 WL 5817323 at *2 (D.D.C., Nov. 16, 2012). See also 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012).
Monaghan is a member of t he Catholic Church. He asserts t hat his Catholic beliefs are in line with Pope Paul VI’s 1968 encyclical Humanae Vitae, which states “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procre ation, whether as an end or as a means”—including contraception—is a grave sin. See Dkt. 8, ex. 2 at ¶¶ 12–15, 24–25, 31. Monaghan also states that he subscribes to authorita tive Catholic teaching regarding the proper nature of health care and medical treatment. For instance, Monaghan believes, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completel y counter t o the health-care profession, which is meant to be an impassioned and unflinchi ng affirmation of li fe.” Id. Plaintiffs do not belie ve that c ontraception or abortion properly constitute health care, and involve immoral practices and the destruction of innocent human life. Id. at ¶¶ 24–25.
On these bases, Monaghan contends that his co mpliance with the mandate would require him to violate his religious beliefs because the mandate forces him, and/or the corporation he controls, to pay for, provide, facilitate, or ot herwise support contrac eption, sterilization and to some ext ent, abortion (hereinafter the “Preventive Services”). I f DF doe s not provi de the mandated contraceptive coverage, Plaintiffs estimate that DF will be required to pay appr oximately $200,000 per y ear as a tax and/or penalty. Plaintiffs do not want to forego providi ng health coverage because doing so would impact DF’s
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ability to compete with other companies that offer such coverage, and its employees would have to obtain expensive individual policies in the private marketplace.
On December 14, 2012, Plaintiffs brought suit c ontending that the ACA mandate violate s the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000 bb–1 (2006), the Administrative Procedures Act (“APA”), 5 U.S.C. § 500 et seq., and the Free Exercise, Free Association, Establishment, and Free Speech clauses of the First Amendment.
On December 21, 2012, Plaintiffs filed an Emergency Motion for a Temporary Restraining Order relative to their RFRA and First Amendment free exercise, free sp eech, and free association clai ms, seeking to enjoin the Government from enforcing the mandate agains t Plaintiffs. De fendants filed a response on December 25, 2012. The Court granted the Motion for a Temporary Restraining Order on December 31, 2013.
On January 8, 2013, P laintiffs filed the instant Motion f or a Preliminary Injunction. The Court held a hearing on the Motion on January 31, 2013. At the hearing, the Court ordered the parties to submit supplemental briefing on or before February 14, 2013.
In connection with the instant Moti on, the Court accepted the following amicus curiae briefs: Brief in Support of Granting Preliminary Injunction from Michigan Attorney General Bill Schuette, filed on January 29, 2013; Brief in Support of Denying Preliminary Injunction by the American Civil Liberties Union on Ja nuary 31, 2013; Brief in Support of Granting Prelim inary Injunction f rom the Bioethics Defense Fund, the Breast Cancer Pr evention Institute, and th e Life Legal Defense Foundation, filed on February 19, 2013. Additionally, the parties filed supplemental authority on February 28, Ma rch 1, and March 5, 2013.
III. LEGAL STANDARD In determining whether or not to grant a preli minary injunction, a district court considers four factors: (1) the plaintiff’s likelihood of success on the merits; (2) whether th e plaintiff could suf fer
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irreparable harm without the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of the injunction on the public interest. Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). See also Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007).
A reviewing court generally will balance these f actors, and no single f actor will necessarily be determinative of whether or not to gra nt the injunction. Connection Distributing Co., 154 F.3d at 288. Courts, however, may grant a preliminary injunction even where the plai ntiff fails to show a str ong or substantial probability of success on the merits, but where he at least shows serious questions going to the merits and irreparable har m which decidedly outweighs any potential har m to the de fendant if the injunction is issued. Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009) (quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 104 (6th Cir. 1982)) (emphasis added).
IV. ANALYSIS As an initial matter , the Court notes that its anal ysis with respect to th e instant motion largely mirrors that of the Court ’s December 31, 2012, Order granting Plaintiffs’ Motion for a Temporary Restraining Order. Nevertheless, given the emergency nature of that motion and the parties’ subsequent oral argument and briefing, the Court sees fit to supplement its prior analysis. A. LIKELIHOOD OF SUCCESS ON THE MERITS – RFRA CLAIM1 1. Standing Inherent to an analysis of whether Plai ntiffs are likely to succeed on the merits of their RFRA claim is the question of whether Plainti ffs may make such a claim to begin with. The relevant portion of the RFRA reads as follows:
1 The Court’s analysis addresses only Plaintiffs’ RFRA claim. The Court finds that it need not include a separate discussion of Plaintiffs’ Free Exercise claim since both theories seek to protect the same liberty interest—the free practice of one’s religion. See Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630, at *3 (E.D. Mich. Oct. 31, 2012).
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Government shall not substan tially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
42 U.S.C. § 2000bb–1(a)( emphasis added). Although the Government does not appear t o have taken a position as to whether a corporation falls within the meaning of “person” in the RFRA, the Government nevertheless argues that DF—as a secular, for-profit business organization with a single owner and director—cannot “exercise religion” in the context of the RFRA.
Neither the Supreme Court nor the Sixth Circ uit has determined whether for-profit, secular corporations possess the free exercise rights held by individuals. Other courts, however, have found t hat for-profit corporations can maintain some religious objectives. Where the beliefs of a closely-held corporation and its owner are indistinguishable, “un ited by their [ ] faith . . . [and] shared, religious objectives[,]” the corporation has standing to assert the free exercise rights of its owners. Tyndale House, 2012 WL 5817323, at *5–7 ( quoting Equal Employment Opportunity Commission v . Townley Engineering & Manufacturing Co., 859 F.2d 610 (9th Cir. 1988); Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009)).
In circumstances nearl y identical to those in this case, the court in Tyndale House granted an injunction after finding a substantial burden on the pl aintiffs’ religious exercise due in lar ge part to the financial consequences that the plaintiffs faced if they elected to not comply with the mandate. 2012 WL 5817323, at *12. The court found that this presented the plaintiffs with a “Hobson’s choice,” and “amply show[ed] that the contraceptive coverage mandate substantially burdens the plaintiffs’ religious exercise.” Id.
Tyndale House involved a closel y-held publishing company. The publishing company was 96.5% owned by a non-profit religious corporation and sold religious products. While these factors make Tyndale House arguably distinguishable from this case, the Tyndale House court relied on two cases from
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the Ninth Circuit Court of Appeals—Townley and Stormans—which both involve for-profit corporations that did not outwar dly sell religious products. According to these decisions, a closely-held corporation may assert its owners’ free exercise and RFRA rights where the corporate entity “is merely the instrument through and by whic h [the owners] express their religious belie fs.” Stormans, 586 F.3d at 1120 (citing Townley, 859 F.2d at 619–20) (internal quotation marks omitted).
Townley involved a closely-held mining equipment company. The company was 94% owned by a husband and wi fe who were both me mbers of the Catholic Church. Townley, 859 F.2d at 611. The couple sought to run t he company in accordance with their faith, as they wer e “unable to separate God from any portion of their daily lives, including their activities at the Townley company.” Id. at 612. The company sought a religious exempti on from Title VII of the Civil Ri ghts Act to allow the company to require its employees to attend weekly religious services. Id. As other courts have done , the Townley court declined to address the issue of whether a for-profit corporation has free exercise rights independent of the free e xercise rights of the c orporation’s owners and offic ers. Instead, the c ourt found t hat the corporation could assert the free exercise rights of its owners. Id. at 619–20, n.15.
The Ninth Circuit later relied on Townley to reach a si milar conclusion in Stormans. The lat ter involved a fourth-ge neration pharmacy business owne d and operated by me mbers of the Stor mans family. Id. at 1120. The pharmacy challenged a state law that required all pharmacies to provide Plan B to customers. Stormans, 586 F.3d at 1116–17. The family objected on religious grounds, c laiming that the pharmacy was “an extension of the beliefs of the members of the Stormans family, and that the beliefs of the Stor mans family [were] the beliefs of [the phar macy].” Id. The c ourt agreed, finding that the pharmacy did not “present any free exercise rights of its own different from or greater than its owners’ rights” and holding that, as in Townley, the pharmacy “has standing to assert the free exercise rights of its owners.” Id.
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This case is analogous to Tyndale, Stormans and Townley—though the Court finds the fa cts in this case much stronger. DF does not present any free exercise rights of its own different from or greater than Monaghan’s rights. Unlike Tyndale, Stormans, and Townley—where the companies in question had multiple owners—Monaghan is DF’s sole shareholder, director, and decision- maker. As such, DF is even more closely-held than those c ompanies, making the beliefs of DF a nd its owner even more indistinguishable.
Moreover, Monaghan has provided exa mples of how he runs DF with an eye towards his religion. Monaghan declares that he incorporates his religious beliefs into the daily operations of DF by, among other ways, provi ding tenants with a Catholic chapel offering daily mass service s, a Catholi c bookstore, a Catholic credit union, and food service providing Catholic menu options. Cf. Stormans, 586 F.3d 1109 (where plaintiffs offered no evidence of how their faith was incorporated into the running of the pharmacy business). It is not necessary for the Court to find that these acts by Monaghan constitute the “exercise of religion” by DF. DF is “merely the instrument through and by which Monaghan express[es] [his] religious belief s.” Stormans , 586 F.3d at 1120 (citations om itted). A conclusion in line with Stormans is thus warranted.
Additionally, the Court finds that decisions by the Courts of Appe als, under si milar circumstances, do not preclude the Court from deciding this Motion in accordance with Tyndale, Townley and Stormans.
The Government relies on Conestoga Woods Specialties v. Sebelius, No. 13-1144, Opinion/Order (3d Cir. Feb. 7, 2013), to c laim that DF, “as a secular, for-profit corporation,” “has no free exercise rights under the First Amendment” or RF RA. The Government further argues that “incorporation’s basic purpose is to create a distinct legal entity , with legal rights, obligations, powers , and privileges dif ferent from those of the natural individuals who cr eated it, who own it, or whom it employs.” Conestoga Wood Specialties Corp. v. Sebelius, No. 12-6744, 2013 WL 140110, at *8 (E.D. Pa. Jan. 11, 2013) (citing Cedric
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2:12-cv-15488-LPZ-MJH Doc # 39 Filed 03/14/13 Pg 9 of 20 Pg ID 833
Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001)). As a number of courts have pointed out, however, the question of whether for-profit corporations possess free exercise rights is unresolved. Tyndale House, 2012 WL 5817323, at *9 (citing First Nat’l Bank v. Bellotti, 435 U.S. 765, 777–78 n.14 (1978) (recognizing that corporations have First Amendment speech rights, but declining to “address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment”)); Stormans, 586 F.3d at 1119 (quotation omitted); Church of Scientology of Cal. v . Cazares, 638 F.2d 1272, 1280 n.7 (5th Cir . 1981) (quotation omitted). Nevertheless, even accepting the Government’s argument does not for eclose the Court from fi nding that DF, although distinct from Monaghan, nevertheless may assert free exercise rights on Monaghan’s behalf. The Court sees no reason why DF ca nnot be secula r and pr ofit-seeking, and maintain rights, obligati ons, powers, and privilege s distinct from those of Monaghan, while at the same time being an instrument through which Monaghan may assert a claim under the RFRA.
The Court is likewise not persuaded by the Government’s reliance on Hobby Lobby to claim that “[g]eneral business corporations . . . do not pray, worship, observe sacr aments or take other religiouslymotivated actions separate and apart f rom the intention and direction of their individual actors.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012)). Notwithstanding that DF need not perform these acts to assert an RFRA claim on behalf of Monaghan, there are nevertheless other ways—besides praying, worshipping, or observing sacraments—in which a corporation (and individuals, for that matter) might express a particular viewpoint on religion. The Court points to the f act that DF provides a Catholic chapel and numerous mass services for its tenants, a Catholic bookstore on-site, and Catholic food options. These services are presumably funded by DF. The Supreme Court has found that corporations exercise First Ame ndment rights not only by adopting a particular view, but by using corporate funds to express that view. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
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The Court se es no reason why a cor poration cannot support a particular religious vie wpoint by using corporate funds to support that viewpoint.
As such, the Court f inds that DF is merely the instrument through and by which Monagha n expresses his religious beliefs. Accordingly, DF may assert an RFRA claim on Monaghan’s behalf. The Court takes no position a s to whethe r DF has an independent right to freely exercise re ligion. See Legatus, 2012 WL 5359630, at *4 (“[plaintiff corporation] was founded as a family business and remains a closely hel d family corporation. Accordingly, the court need not, and does not, de cide whether [plaintiff], as a f or-profit business, has an i ndependent First Amendment right to f ree exercise of religion.”). The Court t urns next t o the questio n of whethe r the m andate substantially burdens Monaghan’s exercise of religion.
2. Substantial Burden The Supreme Court ha s held that “putting substantial pressure on an adhere nt to modify his behavior and to violate his beliefs” substantially burdens the adherent’s exercise of religion. Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981). See also Wisconsin v. Yoder, 406 U.S. 205, 218 (1972) (finding that a challenge d law substantially burdens the free exercise of religion if it compels plaintiffs “to perform acts undeniably at odds with fundamental tenets of their religious beliefs.”). The exercise of r eligion under RFRA i ncludes “any exercise of religion, whet her or not compelled by, or central to, a syste m of rel igious belief.” 42 U.S. C. § 2000bb- 2 (emphasis added) (citing 42 U.S.C. § 2000cc-5). It is, however, “not the province of the court to tell the plaintiffs what their religious beliefs are, i.e. whether their beli efs about a bortion should be under stood to exte nd to how the y run their corporations or the like, or to decide whether such beliefs are fundamental to their belief system.” Hobby Lobby, 870 F. Supp. at 1293. See also Thomas, 450 U.S. at 718 ( finding it beyond the scope of judicial function and competence for a court to decide whether a party is correctly understanding hi s religious doctrine because “[c]ourts are not arbiters of scriptural interpretation.”).
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The particular burden cited by Plaintiffs is the ACA’s requirement that DF provide its e mployees a health insurance plan that includes coverage for th e Preventive Services. The Catholic Church teaches that it is a sin to use, provide, or otherwise support these services. Monaghan is a member of the Catholic Church. He asserts that taking steps to have DF provide c ontraception coverage violates his beliefs as a Catholic. If Monaghan c hooses to not have DF pr ovide coverage in order t o avoid the mandate, the n beginning in 2014, DF will incur an annual penalty of $2,000 per full-time employee.
The Government does not dispute the sincerity of Plaintiffs’ religious belief, but instead disputes that the mandate substantially burde ns this religious belief . The Go vernment argues that the mandat e applies to DF, not Monaghan, and therefore any resulting burden on him is simply too attenuated to be substantial.
The Court finds that the mandate forces Monaghan to violate his beliefs and modify his behavior or else pay substantial penalties for noncompliance. Government action that places Monaghan in such a “Catch-22” dilemma suff iciently constitutes a substantial burden on hi s free exercise of religion. Thomas, 450 U.S. at 718; Yoder, 406 U.S. at 218 (finding that a challenged law substantially burdens the free exercise of religion i f it compels plaintiffs “to perform acts undenia bly at odds with funda mental tenets of their religious beliefs.”).
The Government attempts to attenuate any bu rden on Monagha n by c haracterizing the a cts to which he obj ects as m erely the use of Preventive Services cover age, relying on Autocam v. Sebelius , Conestoga v. Sebelius, and Hobby Lobby v. Sebelius. These decisions, however, are distinguishable from this case and otherwise do not dissuade the Court’s finding of a substantial burden.
First, the Government conde mns the Court’s neglect of a motions panel decision by the Sixt h Circuit Court of Appeals in Autocam v. Sebelius, No. 12-2673 (6th Cir. Dec. 28, 2012). In t hat case, the Sixth Circuit acknowledged the conflicting decisions by a number of courts addressing similar cases, but nevertheless denied an i njunction pending appeal based on the district court’ s reasoned opinion and
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because “the Supreme Court [had] recent[ly] deni[ed] . . . an injunction pending appeal in Hobby Lobby.” Id. at 2.2 The reasoned opinion of the district court is not persuasive and is inapplicable here, given that this case is factually distinguishable from Autocam.
In Autocam, the company in question provided a health savings account which employees could use for medi cal-related expenses—including contraception, sterilization, and abor tions. The plainti ffs attempted to draw a f ine line betw een directing their company to pay directly for coverage for the objectionable services, and giving disc retionary funds to their employees who m ay then choose to buy such services. The district court found no substantia l burden. Presupposing that the plaintiffs objected to their insurance carrier paying for Preventive Services once an employee chose to use them, the district court found the line to be too f ine, stating that the mandate “will keep the locus of decision-making in exactly the same place: namely, with each employee, and not the Autocam plaintiffs.” Autocam, 2012 WL 6845677, at *6. According to the district court, there was little difference between giving employees a health savings account from which they could pay for an abor tion (before the mandate), and directly providing coverage for abortions (after the mandate). Here, however, the line is not so fine.
The pre-mandate to post-mandate leap is signi ficant for Monaghan: there is quite a distinction between not providing coverage for contraception (bef ore the mandate), and providing coverage for contraception (after the mandate). Monaghan declares—and provides Catholic authority in support—that merely providing coverage for the Preventive Services is strictly against his religion. The Court’s task is not to question whether pr oviding coverage is against Monaghan’s religious beliefs; that much is largely taken on M onaghan’s word. See Thomas, 450 U.S. at 718; Hobby Lobby, 870 F. Supp. 2d at 1293.
2 The Su preme Court opinion relied upon by the Autocam court was an in-chambers decision whereby Justice Sotomayor denied the plaintiffs’ motion for an injunct ion pending appellate review. See Hobby Lobby Stores, Inc. v. Sebel ius, 133 S. Ct. 641 (Sotomayor, Circuit Justice Dec. 26, 2012). Justice Sotomayor denied the motion using the Supreme Court’s extraordinary writ s tandard. Id. at 643. That standard, however, is much more stringent than that used for a preliminary injunction. Under the more demanding standard, the entitlement to relief must be “indisputably clear.” Id. (citations omitted). The Court is therefore not persuaded by the in-chambers decision of the Supreme Court.
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Rather, the Court’ s task is to de termine whether this bur den on Mona ghan’s religious exercise is substantial. The Court finds that it is. Monaghan must violate his beliefs and modify his behavior or else pay substantial fines. Losing a First Amendment right is without question an “irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). It is difficult to imagine how a threat of irreparable injury necessarily resulting from the co ercion to forego a particular right cannot constitute a substan tial burden on the exercise of that right. As such, this situation is quite different from that of Autocam because the “locus of decision-making” does change: the decision to provide coverage shifts from Monaghan to the Government. Therefore, a result different from that in Autocam is warranted.
Next, the Government opposes such a findi ng, arguing that “ assuming a substantial burde n merely because plaintiff s unilaterally assert one reads RFRA’s lega l requirement of substantiality completely out of the statute.” The Government cites Autocam, 2012 WL 6855677, at *7 (“[t]his would subject virtually all government action to a potential private veto based on a person’s ability to articulate a sincerely held objection ti ed in some r ational way to a particular religious bel ief[ ]”), and Conestoga, 2013 WL 140110, at *13 (same). The Court disagrees.
Although Supreme Court free exercise jurisprudence suggests t hat a “s ubstantial burden” is a difficult threshold to cross, determining such a burden is a highly fact-speci fic inquiry. See LivingWater Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 734 (6th Cir. 2007). The fa cts here are indicative of a substantial burden on M onaghan’s free exercise. The Gover nment does not deny t he sincerity of Monaghan’s belief or t he Catholic Church’s position on the Preventive Ser vices. The mandate pressures Monaghan to provide coverage for thes e services—against his beliefs—or else pay significant per-employee penalties. And, as Monaghan declares, such penalties would not merely make his free exercise significantly more expensive; the penalties also threaten his ability to remain competitive in the marketplace. This i s not unlike facing a choi ce between following the precepts of r eligion and forfeiting benefits, or abandoning one of the precepts of religi on in order to accept work—whic h the
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2:12-cv-15488-LPZ-MJH Doc # 39 Filed 03/14/13 Pg 14 of 20 Pg ID 838
Supreme Court deemed a substantial burden. Sherbert v. Verner, 374 U.S. 398, 404 ( 1963). While the compulsion upon Mona ghan may be indirect, the infringe ment upon his fre e exercise is nonetheless substantial. Thomas, 450 U.S. at 717–18 (emphasis added).
Last, again relying on Hobby Lobby, the Government argue s “the particular burden of which plaintiffs complain is that f unds, which plaintiffs will contribute to a group health plan, might, af ter a series of independe nt decisions by hea lth care prov iders and pat ients covered by [the c orporate] plan, subsidize someone else’s participation in an activity conde mned by plaintiff[s’] religion.” Hobby Lobby, 2012 WL 6930302, at *3. Yet, this mischaracterizes the burd en placed on Monaghan. Monaghan’ s “particular burden” is that he is being compelled to provide coverage for the Preventive Services. Thus, the substantial burden on Monaghan’s free exercise “inheres in the coerced coverage” of the Preventive Services, “not—or perhaps more precisely, not only—in the late r purchase or use of contr aception or related services.” Korte v . Sebelius, No. 12-3841, 2012 WL 6757353, at *3 (7th Cir. Dec. 28, 2012). This distinction has played a signif icant role in determinations made by other courts under si milar circumstances3—and here distinguishes this case from Hobby Lobby.
Accordingly, the Court fi nds that the mandate pr essures Monaghan to modi fy his behavior and violate his beliefs because Monaghan would be forced to refrain from or change the way he exercises his faith through DF. His only other choice is to suffer severe financial harm to his company. Therefore, the
3 Compare Tyndale House, 2012 WL 5817323, at *13 (“[t]he plaintiffs’ specific objection is not simply to the use of the contraceptives at issue, but to ‘providing coverage for abortifacients and related education and counseling in [plaintiffs’] health insurance plan”); Grote Indus., LLC v. Sebel ius, No. 12-134, 2012 WL 6725905 at *6 (S. D. Ind. Dec. 2 7, 2012) (“[w]e acknowledge that Plaintiffs object not just to the use of cont raceptives, but to the coverage itself” (emphasis in original)) with Conestoga, 2013 WL 140110, at *13 (“the core of the [plaintiffs’] religious objection is the effect of particular contraceptives on a fertilized egg”); O’Brien v. United States Dep’t of Health and Human Services, No. 12-476, 2012 WL 4481208 at *6 (E.D. Mo. Sept. 28, 2012) (“[t]he burden of whi ch plaintiffs complain is that funds, which plaintiffs will contribute to a group heal th plan, might, after a series of independent decisions by health care providers and patients covered by [plaintiffs’] plan, subsidize someone else’s part icipation in an act ivity that is condemned by plaintiffs’ religion”). M onaghan objects to pay ing for, providing, facilitating, or ot herwise supporting the Preventive Services. Whether or not his employees actually obtain such services is irrelevant. This undermines the Government’s “too-attenuated” argument.
14

2:12-cv-15488-LPZ-MJH Doc # 39 Filed 03/14/13 Pg 15 of 20 Pg ID 839
mandate substantially burdens Monaghan’s exercise of religion. The Court turns next to the question of whether the mandate serves a compelling governmental interest.
3. Compelling Government Interest The Government may substantially burden a person’s exercise of religion “only if it demonstrates that application of the burden to the person is in furtherance of a compelling gove rnmental interest.” 42 U.S.C. § 2000bb–1(b)(1). A “compelling interest” is one “of the highest order.” Church of the Lukumi Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993); Yoder, 406 U.S. at 215. The Government bears the burden of proof and “ambiguous proof will not suffice.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2739 ( 2011). To satisfy this burden, the Government must “specifically identify an ‘actual problem’ in need of solving,” and show that substantially burdening Plaintiffs’ free exercise of religion is “actually necessary to the solution.” Id. at 2739. The Government advances two interests furthered by the mandate. First, the Government states it has an interest in promoting public health generally. Courts have assumed, sometimes without deciding, that the improvement of public health i s, at least in some instances, a compell ing interest. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 310 (1 978) (“It may be assumed that in some situations a State’ s interest in f acilitating the health car e of its citizens is suf ficiently compelling to support the use of a suspect classification.”); Buchwald v. Univ. of N.M. School of Med. , 159 F.3d 487, 498 ( 10th Cir. 1998) (finding that “public health is a compelling government interest”). The Government argues that the primary benefit of the regulations is that “individua ls will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treat ment of disease.” See Dkt. 12 at 16. Additionally, the Government expects the regulations to increase access to and utilization of Preventative Services, which are not used at optimal levels today, by expanding coverage and eliminating cost sharing for the services. Id. According to the Government’s theory, increased access to contraceptive services is a
15

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key part of t hese predicted health outcomes, as a lack of contraceptive use may prove to have negative health consequences. Id.
The Government’s second propos ed interest is to “remov[ e] the barriers to econom ic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women” by “ [a]ssuring women equal ac cess to . . . goods, pri vileges, and advantages[.]” Id. (citing Roberts v. U.S. Jaycees, 468 U.S. 609 ( 1984)). The Government states that by including in the ACA gender-specific preventive health services for wome n, Congress assured that the goals and benefits of effective preventive health care would apply with equal force to women, who might otherwise be excluded from the ACA. The Government notes that “women have different health needs than men, and these needs of ten generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” Id. at 17. These costs result in women often forgoing preventive care. Id. Accordingly, this disproportionate burden on women cre ates “financial barriers . . . that prevent women from achieving health and wellbeing for themselves and their families.” Id.
The Government, however, has failed to show that the mandate, as applied to Plainti ffs, serves a compelling interest. “RFRA requires the Government to demonstrate that the comp elling interest test is satisfied through application of the challenged law to the person—the particular clai mant whose sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430–31 (2006). That is, of course, not to say that t he Government does not have a compelling interest in the uniform application of a progra m. To est ablish this, howe ver, the Government must offer evidence that granting the requested religious accommodations would seriously compromise its ability to administer this program. See id. at 435.
Severely undermining any claim in this regard is the existence of numerous exemptions to the mandate, resulting in approxim ately 190 million people f alling outside of the mandate’s purview. See Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298 (D. Colo. 2012) (“[t]he government has exempted over
16

2:12-cv-15488-LPZ-MJH Doc # 39 Filed 03/14/13 Pg 17 of 20 Pg ID 841
190 million health plan participants . . . fr om the preventive car e coverage mandate”); Tyndale House, 2012 WL 5817323, at *18 (“[i]ndeed, the 191 m illion employees excluded from the contraceptive coverage mandate include those covered by grandf athered plans alone.”). The ma ndate “cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibite d.” Church of the Luk umi, 508 U.S. at 547. The Government’s compelling interest is therefore called into question by the number of exemptions currently in existence.
Last, the Court examines whether the Government has used the least restrictive means of serving its purportedly compelling interest.
4. Least Restrictive Means Even if the government were able to establish a compelling interest in applying the preventive care coverage mandate to Plaintiffs, it must also de monstrate that there are no feasible, less-restrictive alternatives. 42 U.S.C. § 20000bb–1(b)(2). The Sixth Circuit describes the least restrictive means test as “the extent to which accommodation of the [plaintiff] would impede the state’s objectives,” and explains that “[w]hether the state has made this showing depends on a comparison of the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity.” S. Ridge Baptist Church v. Indus. Comm’n, 911 F.2d 1203, 1206 (6th Cir. 1990). The government need only refute alternatives proposed by Plaintiffs. United States v. Wilgus, 638 F. 3d 1274, 1289 (10th Cir. 2011). Plaintiffs set forth several alternative means for t he Government to use to address their interests. Plaintiffs propose that the Government could provide the contraceptive services directly, or perhaps offer incentives to employers who provide for such services (as opposed to sanctioning employers who do not). Plaintiffs additionally state that “contraceptive servi ces are already readily available “at sites such as community health centers, public clinics, and hospitals with income-based support.” Dkt. 20 at 15. See also Newland v. Sebelius, No. 12–1123, 2012 WL 3069154 at *15 (D. Colo. July 27, 2012).
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The Government argues that Plaintiffs’ alterna tives would require considerable new costs, ne w

legislation, administrative hurdles, and that none of the alternatives are as effe ctive as the Government’s

chosen means. De fendants do not deny that Plai ntiffs’ alternatives would achieve the purpose of

providing contraceptive services to women with no cost sharing, but argue that Plaintiffs’ alternative will

not guarantee m inimal logistical and administrati ve obstacles to recei ving coverage. Yet, t he

Government has not establ ished its means as necessarily being the least restrictive. Defendants bear the

burden of demonstrating that refusing to exempt Plaintiffs from the preventive care coverage mandate is

the least restrictive means of furthering their compelling interest. And, given the existence of government

programs similar to Plai ntiffs’ proposed alternative, the Court fi nds that the Government has failed t o

meet its burden. See Newland v. Sebelius, No. 12–1123, 2012 WL 3069154 at *8 ( D. Colo. Jul y 27,

2012) (“Defendants have failed to ad duce facts establishing that government provision of contraception

services will necessarily entail logi stical and administrative obstacles defeating the ultimate purpose of

providing no-cost preventative health care coverage to women.”).

4. Conclusion

Plaintiffs have shown that ab iding by the mandate will substant ially burden their exercise of

religion. The Government has failed to satisf y its burden of showin g that its actions were narrowly

tailored to serve a compelling interest. Therefore, the Court finds that Plaintiffs have established at least

some likelihood of succeeding on the merits of their RFRA claim, or at least a “serious question” going to

the merits of the clai m. Caruso, 569 F.3d at 277. Accordingly, this factor weighs in favor of granti ng

Plaintiffs’ motion. The Court turns next to the remaining factors to consider when assessing preliminary

injunctive relief.

B. IRREPARABLE HARM TO PLAINTIFF

The loss of First Amendment freedoms, for eve n minimal periods of ti me, unquestionably

constitutes irreparable injury . Elrod v. Burns, 427 U.S. 347, 373 (1976).
18

Moreover, when First

2:12-cv-15488-LPZ-MJH Doc # 39 Filed 03/14/13 Pg 19 of 20 Pg ID 843
Amendment freedoms are at risk, the irreparable harm factor “merges” with the likelihood of success, such that if the plaintiff shows he is likely to succeed on the merits, he has si multaneously proven he will suffer an irr eparable harm. See McNeilly v. Land, 684 F.3d 611, 620–21 (6 th Cir. 2012) (“Once a probability of success on the m erits was shown, irreparable ha rm followed . . . . B ecause [the plaintiff] does not have a likelihood of success on the merits, . . . his ar gument that he is irreparably harmed by the deprivation of his First Amendment rights also fails.”).
Because Plaintiffs’ claims involve a First Amendment right, and because the Court has found a likelihood that Plaintiffs’ RFRA claim will succeed on the merits, the C ourt finds that irreparable har m could result to Plaintiff. This factor therefore weighs in favor of granting Plaintiffs’ motion. C. IMPACT ON PUBLIC INTEREST
The impact of a preli minary injunction on the pub lic interest turns in lar ge part on whether Plaintiffs’ Constitutional rights are vi olated by the enforcement of the ma ndate. “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994); see also Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (stating “the public as a whole has a significant interest in ensuring equal protection of the laws and protection of First Amendment liberties”). As noted, Plaintiffs’ constitutional right to freely exercise religion is at issue in this cas e. It is in the best interest of the public that Monaghan not be compelled to act i n conflict with his religious be liefs. This factor thus weighs in favor of granting Plaintiffs’ motion. D. BALANCING HARM
Finally, the Court must balance the harm to Plaintiffs if the injunction is de nied with the harm to the Government if the injunction is granted. So l ong as Plaintiffs’ have shown “serious questions” as to the merits of their RFRA claim, and irreparable harm that outwei ghs any potential harm to t he
19

2:12-cv-15488-LPZ-MJH Doc # 39 Filed 03/14/13 Pg 20 of 20 Pg ID 844

government, the Court may gr ant Plaintiffs’ motion. Caruso, 569 F.3d at 277 (quoting Friendship

Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 104 (6th Cir. 1982)) (emphasis added).

As discussed above, denying Plaintiffs’ motion will result in a substantial burden on Monaghan’s

right to free exercise of religion, since the mandate requires him to choose whether to comply and violate

his beliefs, or accept the financial c onsequences of not doing so. And, as noted, such an infringement

upon Plaintiffs’ First Amendment rights—even if for a short ti me—constitutes irreparable injury. See

Elrod, 427 U.S. at 373.

The Government will suffer some, but co mparatively minimal harm if the injunction is granted.

Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir . 1998) (noting that “the governme nt

presumably would be substantially harmed if enforcement of a constitutional law . . . were enjoined”).

The harm of delaying the implem entation of a statute that may la ter be deemed constitutional is

outweighed by the ris k of substantially bur dening the free exercise of religion. See Legatus, 2012 WL

5359630 at *4. Moreover , the harm of carving out, at least te mporarily, an additional exemption for an

organization with less than 100 employees can hardly be considered a significant or “irreparable” harm to

the Government. Therefore, this factor weighs in favor of granting Plaintiffs’ motion.

V. CONCLUSION

For the reasons set forth abov e, IT IS HEREBY ORDERED that Plaintiffs’ Motion for a

Preliminary Injunction [dkt 20] is GRANTED.

IT IS FURTHER ORDERED that the status quo established through the Court’s December 31,

2012, Order granting Plaintiffs’ Motion for Temporary Restraining Order shall remain in effect during the

pendency of this case.

IT IS SO ORDERED.

Date: March 14, 2013

s/Lawre
20

nce P. Zatkoff Lawrence P. Zatkoff U.S. District Judge

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS MONAGHAN, and DOMINO’S FARMS CORP.,
Plaintiffs,

Case No. 12-15488 Hon. Lawrence P. Zatkoff

v.

KATHLEEN SEBELIUS, et al,

Defendants. _______________________________________/

OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse, in the City of Port Huron, State of Michigan, on June 26, 2013.

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendants’ Motion to Stay Proceedings [dkt 43], which seeks

to stay this case pending the Sixth Circuit Court of Appeals’ dec ision in two related cases— Autocam

Corporation v. Sebelius, No. 12-2673, and Weingartz Supply Company v. Sebelius, No. 13-1093. T he

parties have fully briefe d the motion. The Court fi nds that the facts and legal argum ents are adequately

presented in the parties’ papers such that the deci sion process would not be signific antly aided by oral

argument. Therefore, pur suant to E.D. Mich. L.R. 7.1( f)(2), it is hereby ORDERED that the Motion be

resolved on the briefs submitted, without oral argument. For the fo llowing reasons, Defendants’ Motion

is GRANTED.

I. LEGAL STANDARD “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and f or

litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S. Ct. 163, 81 L. E d. 153 (1936). A court considering a m otion to stay should weigh the following f actors: “[1] the potentiality of another case having a dispositive effect on the case to be stayed, [2] the judicial economy to be saved by waiting on a dispositive decision, [3] the public welfare, and [4] the hardship/prejudice to the party opposing the stay, given its duration.” Michael v. Ghee, 325 F.Supp.2d 829, 831 (2004) (citing Landis, 299 U.S. at 255).
II. ANALYSIS Defendants argue that the Court shoul d stay t he proceedings here pendi ng the Sixth Circuit’s decision in Autocam Corporation v. Sebelius, No. 12-2673 ( 6th Cir.), or Weingartz Supply Company v. Sebelius, No. 13-1093 (6th Cir.), whichever occurs first. Weingartz and Autocam reached differing results on the preliminary injunction issue, with the Eastern District of Mi chigan granting an injunction in Weingartz, and the Western District of Michigan denying the injunction in Autocam. Plaintiffs argue that Autocam is not controlling because the Cour t previously found the facts in that case distinguishable from those in this case. Plai ntiffs also argue that if the Sixth Circuit decides Weingartz before Autocam, that decision will do nothing to negate the unique factual circumstances of this case. Although these potential di fferences may give rise to di fferent resolutions on the m erits in Weingartz and Autocam, the factual circumstances and central legal issues in both cas es are substantially similar to those in this case. The cases involve similar issues—namely plaintiffs from for-profit, secular corporations challenging the validity and constituti onality of the Preventive Services Mandate of the Affordable Care Act. In each case, the plainti ff represents a for-profit, secular company seeking not to comply on the grounds that to do otherwise would burden the reli gious beliefs of the company’s owners. As in this case, the plainti ffs in Weingartz and Autocam do not qualify for any type of religious or other exemption from the Mandate. As such, the Court finds Weingartz and Autocam to be substantially similar
2

to this case and that the Sixth Circ uit’s decision in either one will lik ely provide guidance in the Court’ s

decisions in this case and narrow the issues the Court must resolve.

Given this, it would be at odds with the notion of judicial economy for this Court to pr oceed in

this case and risk reaching an ulti mate resolution that is inconsistent with precedent the Si xth Circuit

creates shortly thereafter. The Court, therefore, will await the bi nding guidance of the Sixth Circ uit’s

resolution of Weingartz or Autocam.

Last, Plaintiffs do not demonstrate any prejudice or hardship requiri ng the Court to deny

Defendants’ Motion to St ay. The status quo e stablished through the Court’s December 31, 2012, Order

granting Plaintiffs’ Motion for Temporary Restraining Order will remain in effect during the pendency of

this case. See Dkt. 39 a t 20. And, as noted, waiting for additi onal guidance from the Sixth Circui t

promotes judicial economy and efficiency. Therefore, staying this case does not create an undue hardship

on Plaintiffs.

Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Stay Proceedings [dkt 43]

is GRANTED.

IT IS FURTHER ORDERED that this proceeding is stayed pending the Sixth Circuit’s decision

in Autocam or Weingartz, after which this proceeding shall resume upon motion by either party.

IT IS SO ORDERED.

s/Lawrence P. Zatkoff LAWRENCE P. ZATKOFF UNITED STATES DISTRICT JUDGE

Dated: June 26, 2013

3

 
 2:12-cv-15488-LPZ-MJH Doc # 51 Filed 12/20/13 Pg 1 of 5 Pg ID 919

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS MONAGHAN, and DOMINO’S FARMS CORP.,
Plaintiffs,

Case No. 12-15488 Hon. Lawrence P. Zatkoff

v.

KATHLEEN SEBELIUS, et al,

Defendants. _______________________________________/

OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse, in the City of Port Huron, State of Michigan, on December 20, 2013

PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION This matter is before the Court on Plaintiffs Domino’s Farms Corporation and Thom as Monaghan’s Motion to remove the stay and reopen proceedings for a limited purpose [dkt 46]. The motion has been fully briefed. The Court finds that the facts and legal argum ents are adequately presented in the parties’ papers such that the decision process would not be significantly aided by oral argum ent. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the m otion be resolved on the briefs subm itted, without oral argum ent. For the following reasons, Plaintiffs’ motion is DENIED.
II. BACKGROUND

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2:12-cv-15488-LPZ-MJH Doc # 51 Filed 12/20/13 Pg 2 of 5 Pg ID 920
On December 24, 2012, Plaintiffs com menced this action seeking a Prelim inary Injunction and Perm anent Injunction enjoining Defendants from implementing and enforcing certain regulations promulgated under the Affordable Care Act (“ACA”) [dkt 1]. On Decem ber 30, 2012, the Court granted Plaintiffs’ m otion for a temporary restraining order from the Mandate [dkt 17]. On March 14, 2013, the Court granted Pl aintiffs’ Preliminary Injunction [dkt 39]. On May 13, 2013, Defendants filed a notice of appeal [dkt 41]. Defendants subsequently filed a m otion to stay proceedings pending app eal, which Plaintiffs opposed [dkt 43, 44]. The Court granted Defendant s’ motion to stay proceedings on June 26, 2013, “pending the Sixth Circuit’s decision i n Autocam [Corp. v. Sebelius , No 12-2673 (W .D. Mich.),] or Weingartz [Supply Co. v. Sebelius , No. 13-1093 (E.D. Mich.) (Cleland)], after which this proceeding shall resume upon motion by either party” [dkt 45].
Plaintiffs request that this Court rem ove the stay issued on June 26, 2013, so that they may amend their complaint by adding five poten tial plaintiffs: The Ave Marie Foundation, Ave Marie Communications, Domino’s Farm Petting Farms, Rhodora J. Donahue Academy, Inc., and the Thomas More Law Center (the “Additional Plai ntiffs”). According to the current Plaintiffs, all Additional Plaintiffs are nonprofit religious organizations founded and funde d by the current Plaintiffs. Plaintiffs allege the Additional Plain tiffs were not included in the original com plaint because a “temporary safe harbor” existed exempting such nonprofit religious corporations from complying with the Preventative Health Services coverage provision (the “Provision”) in the Women’s Health Amendment to the ACA. Plainti ffs allege this safe harbor was t erminated on August 1, 2013, thus making the claims of the Additional Plaintiffs ripe for review.
Defendants assert that the stay s hould not be lifted, pointing out that Plaintiffs do not seek to lift the current stay for the reasons included in the Court’s Order. Instead, Defendants
2

2:12-cv-15488-LPZ-MJH Doc # 51 Filed 12/20/13 Pg 3 of 5 Pg ID 921
point out that the claim s brought by the Additional Plaintiffs would require the Court to address entirely new claims based on an entirely different se t of regulations as they apply to an entirely different set of parties. Defendants assert that the different parties and di fferent legal issues presented by the Additional Plaintiffs would best be heard in a separate action.
III. ANALYSIS “[T]he power to stay proceedings is incident al to the power inherent in ever y court to control the disposition of the causes on its docket with econom y of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co. , 299 U.S. 248, 254, (1936). Likewise, the power to lift a stay for limited purposes is solely within the discretion of the district court. See, generally, Equipments De Transformation IMAC v. Anheuser-Busch Cos., 2008 W L 3852240 (E.D. Mich. Aug. 18, 2008); Ryan v. Gonzales, 133 S.Ct. 696, 708 (2013) (“W e do not presume that district courts need unsolicited advice from us on how to manage their dockets.”). Defendants argue that the serious degree of variance in the claim s raised by the current Plaintiffs and Additional Plaintiffs—along w ith the merit behind each claim —warrants denying Plaintiffs’ motion and keeping the curr ent stay in place. The Court agrees. The current Plaintiffs would not suffer any prejudice if the st ay were to rem ain in place. The Pr eliminary Injunction this Court entered protects the current Pla intiffs from enforcement of the regulations they challenge. Fur ther, Plaintiffs’ assertion that the Additional Plaintif fs’ claims are now ripe because the “temporary safe harbor” has been lifted com pletely ignores that the tem porary safe harbor was replaced with a different, perm anent safe harbor exem ption for nonprofit religious organizations. As the perm anent safe harbor exem ption exists only for nonprofit religious organizations—such as the Add itional Plaintiffs—the analysis required f or them will be completely different than that of the current Plaintiffs. As such, the differences between the two
3

2:12-cv-15488-LPZ-MJH Doc # 51 Filed 12/20/13 Pg 4 of 5 Pg ID 922
sets of parties and issues are vast: addressi ng whether one regulation in the A CA infringes upon a secular, for-profit corporation’s religious freedom s is very different than whether the permanent safe harbor exem ption presented by the ACA for nonprofit, religious organizations also infringes upon religious freedoms.
Additionally, the Court granted the stay for the purpose of waiting for the Sixth Circuit to issue a ruling in two sim ilar ACA c ases involving secular for-profit com panies. The Sixth Circuit’s ruling regarding secular for-profit com panies will not be binding on or govern the Additional Plaintiffs or their claim s. Plaintiffs acknowledge as m uch in their m otion, stating that: “[The ACA’s] additional regulations [c oncerning nonprofit religious corporations] are separate from the Court’s original analysis regarding whether a stay should cur rently halt this litigation.”
Finally, the Court finds that the stark differenc es presented by the claim s of the Additional Plaintiffs, as com pared with the cl aims of the current Plaintiffs, m ay—and likely would—create a scenario where the Court woul d be proceeding with part of the case while leaving the rest of it behind, resulting in a de facto bifurcation of claims.
Therefore, although it is within the discretion of the Court to grant removal of a stay, for the reasons set forth above, the Court finds that t he removal of the stay is not warranted in this case is not warranted in this case.
4

2:12-cv-15488-LPZ-MJH Doc # 51 Filed 12/20/13 Pg 5 of 5 Pg ID 923
IV. CONCLUSION Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED that Plaintiffs’ motion to remove the stay and reopen proceedings for a limited purpose [dkt 46] is DENIED. IT IS SO ORDERED.
S/Lawrence P. Zatkoff HON. LAWRENCE P. ZATKOFF U.S. DISTRICT COURT Dated: December 20, 2013
5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

DOMINO’S FARMS CORPORATION; and THOMAS MONAGHAN, Owner of Domino’s Farms Corporation,

Case No. 2:12-cv-15488 Hon. Lawrence P. Zatkoff

Plaintiffs,

Magistrate Judge Michael Hluchaniuk

v.

SYLVIA BURWELL, et al.,

Defendants. ___________________________________/
INJUNCTION AND JUDGMENT

In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores,

Inc., 134 S. Ct. 2751 (2014),

IT IS HEREBY ORDERED that defendants, their employees, agents, and

successors in office are 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 Domino’s Farms Corporation 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. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and (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 Domino’s Farms Corporation its employee health plan(s), the group health coverage provided in connection with such plan(s), and/or Domino’s Farms Corporation’s health insurance issuers and/or third-party administrators with respect to Domino’s Farms Corporation’s health plan(s); 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.; IT IS FURTHER ORDERED that all other claims against Defendants are DISMISSED; 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 January 12, 2015. If there is no resolution of the attorneys’ fees and costs matter, Plaintiffs may
2


file a motion for attorneys’ fees and costs within thirty days of January 12, 2014, pursuant to Federal Rule of Civil Procedure 54; and
IT IS FURTHER 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.

Date: December 3, 2014

s/Lawrence P. Zatkoff The Honorable Lawrence P. Zatkoff United States District Judge

3


 
 Case: 2:12-cv-15488 As of: 04/17/2016 09:51 PM EDT 1 of 6
CLOSED,STAYED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:12−cv−15488−LPZ−MJH

Domino's Farms Corporation et al v. Sebelius et al Assigned to: District Judge Lawrence P. Zatkoff Referred to: Magistrate Judge Michael J. Hluchaniuk

Case in other court:

U.S. Court of Appeals − Sixth Circuit, 13−01654

Cause: 42:1983 Civil Rights Act

Plaintiff

Date Filed: 12/14/2012 Date Terminated: 12/03/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Domino's Farms Corporation

represented by Richard Thompson Thomas More Law Center 24 Frank Lloyd Wright Drive Box 393 Ann Arbor, MI 48106 734−827−2001 Fax: 734−930−7160 Email: rthompson@thomasmore.org ATTORNEY TO BE NOTICED

Erin E. Mersino Thomas More Law Center 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 734−827−2001 Fax: 734−930−7160 Email: emersino@thomasmore.org ATTORNEY TO BE NOTICED

Plaintiff Thomas Monaghan

represented by Richard Thompson (See above for address) ATTORNEY TO BE NOTICED

Erin E. Mersino (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius
Defendant United States Department of Health and Human Services Defendant

represented by Bradley P. Humphreys − INACTIVE U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Room 7219 Washington, DC 20530 202−514−3367 Fax: 202−616−8470 ATTORNEY TO BE NOTICED
represented by Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED

Case: 2:12-cv-15488 As of: 04/17/2016 09:51 PM EDT 2 of 6

Secretary of Labor Hilda L Solis

represented by Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department of Labor

represented by Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED

Defendant Timothy Geithner

represented by Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department of Treasury

represented by Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED

Amicus Bill Schuette

represented by B. Eric Restuccia Michigan Department of Attorney General P.O. Box 30217 Lansing, MI 48909 517−373−4875 Email: restucciae@michigan.gov ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union Foundation American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2633 American Civil Liberties Union Foundation

represented by Brigitte A. Amiri American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004−2400 212−519−7897 Fax: 212−549−2652 Email: bamiri@aclu.org ATTORNEY TO BE NOTICED

Amicus Bioethics Defense Fund

represented by Robert C. Davis Davis, Listman, Brennan Towne Square Building 10 S. Main Street Suite 401 Mt. Clemens, MI 48043 586−469−4300 Fax: 586−469−4303 Email: rdavis@davislistman.com ATTORNEY TO BE NOTICED

Amicus Life Legal Defense Foundation

represented by Robert C. Davis (See above for address) ATTORNEY TO BE NOTICED

Amicus Breast Cancer Prevention Institute

represented by Robert C. Davis (See above for address)

Case: 2:12-cv-15488 As of: 04/17/2016 09:51 PM EDT 3 of 6 ATTORNEY TO BE NOTICED

Date Filed 12/14/2012
12/17/2012 12/17/2012 12/19/2012 12/19/2012 12/20/2012
12/21/2012 12/21/2012 12/23/2012 12/24/2012 12/25/2012 12/25/2012 12/25/2012
12/27/2012

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Plaintiffs. Plaintiff requests summons issued. Receipt No: 0645−3857375 − Fee: $ 350. County of 1st Plaintiff: Washtenaw County, Michigan − County Where Action Arose: Washtenaw County, Michigan − County of 1st Defendant: District of Columbia. [Previously dismissed case: No] [Possible companion case(s): None] (Mersino, Erin) Modified on 12/17/2012 (DTyl). [COMPLAINT FILED BY ALL PLAINTIFFS AGAINST ALL DEFENDANTS] (Entered: 12/14/2012)
2 SUMMONS Issued for * All Defendants * (DTyl) (Entered: 12/17/2012)
3 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (DTyl) (Entered: 12/17/2012)
4 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Domino's Farms Corporation (Mersino, Erin) (Entered: 12/19/2012)
5 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Thomas Monaghan (Mersino, Erin) (Entered: 12/19/2012)
6 CERTIFICATE OF SERVICE by All Plaintiffs for Service of Summons and Complaint upon Kathleen Sebelius, United States Department of Health and Human Services, Hilda Solis, United States Department of Labor, Timothy Geithner, United States Department of Treasury, United States Attorney General and United States Attorney Eastern District of Michigan (Mersino, Erin) (Entered: 12/20/2012)
7 Emergency MOTION for Leave to File Excess Pages for Temporary Restraining Order by All Plaintiffs. (Mersino, Erin) (Entered: 12/21/2012)
8 Emergency MOTION for Temporary Restraining Order by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5) (Mersino, Erin) (Entered: 12/21/2012)
9 NOTICE of hearing on 8 Emergency MOTION for Temporary Restraining Order . Motion Hearing set for 12/27/2012 10:30 AM before District Judge Lawrence P. Zatkoff IN PORT HURON (MVer) (Entered: 12/23/2012)
10 NOTICE of Appearance by Bradley P. Humphreys on behalf of Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Humphreys, Bradley) (Entered: 12/24/2012)
TEXT−ONLY NOTICE: Hearing on 12/27/2012 is Cancelled. (MVer) (Entered: 12/25/2012)
11 ORDER REQUIRING RESPONSE re 8 Emergency MOTION for Temporary Restraining Order filed by Domino's Farms Corporation, Thomas Monaghan. Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 12/25/2012)
12 RESPONSE to 8 Emergency MOTION for Temporary Restraining Order filed by Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Hobby Lobby v. Sebelius (10th Cir.), # 3 Exhibit 2 − Autocam Corp. v. Sebelius, # 4 Exhibit 3 − Korte v. U.S. Dep't of Health & Human Servs., # 5 Exhibit 4 − O'Brien v. U.S. Dep't of Health & Human Servs.) (Humphreys, Bradley) (Entered: 12/25/2012)
13 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury re 8 Emergency MOTION for Temporary Restraining Order of Supplemental Authority (Attachments: # 1 Index of Exhibits, # 2 Exhibit Hobby Lobby Stores, Inc. v. Sebelius − Sotomayor In Chambers Decision, # 3

Case: 2:12-cv-15488 As of: 04/17/2016 09:51 PM EDT 4 of 6

12/28/2012 12/28/2012 12/30/2012 12/30/2012 12/31/2012 01/08/2013 01/08/2013 01/23/2013 01/28/2013
01/29/2013 01/30/2013 01/30/2013

Exhibit Yeps v. Sebelius − Statement Denying Pls.' Mot. for TRO, # 4 Exhibit Grote Industries, Inc. v. Sebelius − Order Denying Pls.' PI Mot.) (Humphreys, Bradley) (Entered: 12/27/2012)
14 NOTICE by Domino's Farms Corporation, Thomas Monaghan re 13 Notice (Other),, Response to Notice filed by Defendants (Mersino, Erin) (Entered: 12/28/2012)
15 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury re 8 Emergency MOTION for Temporary Restraining Order of Supplemental Authority (Attachments: # 1 Exhibit Autocam Corp. v. Sebelius − 6th Cir. Order) (Humphreys, Bradley) (Entered: 12/28/2012)
16 NOTICE by All Plaintiffs re 15 Notice (Other), Response to Notice filed by Defendants and Notice of Supplemental Authority by Plaintiffs (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2) (Mersino, Erin) (Entered: 12/30/2012)
17 ORDER granting 8 Motion for TRO. Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 12/30/2012)
18 TEMPORARY RESTRAINING ORDER Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 12/31/2012)
19 MOTION for Leave to File Excess Pages for Brief in Support of Preliminary Injunction by All Plaintiffs. (Mersino, Erin) (Entered: 01/08/2013)
20 MOTION for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3) (Mersino, Erin) (Entered: 01/08/2013)
21 NOTICE of hearing on 20 MOTION for Preliminary Injunction . Motion Hearing set for 1/31/2013 11:00 AM before District Judge Lawrence P. Zatkoff IN PORT HURON (MVer) (Entered: 01/23/2013)
22 RESPONSE to 20 MOTION for Preliminary Injunction filed by Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Autocam Corp. v. Seblius (6th Cir. Order Denying Mot. for Prelim. Inj. Pending Appeal), # 3 Exhibit Autocam Corp. v. Sebelius (6th Cir. Order Denying Mot. for Recons.), # 4 Exhibit Autocam Corp. v. Sebelius (W.D. Mich. Order Denying Mot. for Prelim. Inj.), # 5 Exhibit Hobby Lobby v. Sebelius (Sotomayor, J., in chambers), # 6 Exhibit Hobby Lobby v. Sebelius (10th Cir. Order Denying Prelim. Inj. Pending Appeal), # 7 Exhibit Conestoga Wood Specialties Corp. v. Sebelius (E.D. Pa. Order Denying Mot. for Prelim. Inj.), # 8 Exhibit Annex Medical, Inc. v. Sebelius (D. Minn. Order Denying Mot. for Prelim. Inj.), # 9 Exhibit Annex Medical, Inc. v. Sebelius (D. Minn. Order Denying Mot. for Prelim. Inj. Pending Appeal), # 10 Exhibit Grote Indus., Inc. v. Sebelius, (S.D. Ind. Order Denying Mot. for Prelim. Inj.), # 11 Exhibit Grote Indus., Inc. v. Sebelius (S.D. Ind. Order Denying Mot. for Recons.), # 12 Exhibit Korte v. U.S. Dep't of Health & Human Servs. (7th Cir. Order Granting Mot. for Prelim. Inj. Pending Appeal), # 13 Exhibit Korte v. U.S. Dep't of Health & Human Servs. (S.D. Ill. Order Denying Mot. for Prelim. Inj.), # 14 Exhibit O'Brien v. U.S. Dep't of Health & Human Servs (8th Cir. Order Granting Stay Pending Appeal), # 15 Exhibit O'Brien v. U.S. Dep't of Health & Human Servs. (E.D. Mo. Order Granting Mot. to Dismiss)) (Humphreys, Bradley) (Entered: 01/28/2013)
23 MOTION for Leave to File an Amicus Brief by Bill Schuette. (Attachments: # 1 Amicus Brief) (Restuccia, B.) (Entered: 01/29/2013)
24 ORDER granting 23 Motion for Leave to File. Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 01/30/2013)
25 MOTION for Leave to File Reply Brief by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit A) (Mersino, Erin) (Entered: 01/30/2013)

Case: 2:12-cv-15488 As of: 04/17/2016 09:51 PM EDT 5 of 6

01/31/2013 01/31/2013 02/01/2013
02/14/2013 02/14/2013
02/19/2013 02/19/2013 02/19/2013 02/19/2013 02/19/2013 02/19/2013 02/28/2013 03/01/2013 03/05/2013
03/14/2013 03/14/2013 05/13/2013

26 NOTICE of Appearance by Richard Thompson on behalf of All Plaintiffs. (Thompson, Richard) (Entered: 01/31/2013)
27 MOTION for Leave to File Amicus Brief by American Civil Liberties Union Foundation. (Attachments: # 1 Exhibit A − Proposed Amicus Brief) (Amiri, Brigitte) (Entered: 01/31/2013)
Minute Entry − Motion Hearing held on 1/31/2013 re 20 MOTION for Preliminary Injunction filed by Domino's Farms Corporation, Thomas Monaghan before District Judge Lawrence P. Zatkoff. Disposition: The Court requested additional briefing. The Court gave both sides two weeks to respond to the Amicus Brief filed by the Attorney General.(Court Reporter Lawrence Przybysz) (MVer) Modified on 2/1/2013 (MVer). (Entered: 02/01/2013)
28 SUPPLEMENTAL BRIEF re Motion Hearing, filed by All Plaintiffs. (Mersino, Erin) (Entered: 02/14/2013)
29 SUPPLEMENTAL BRIEF re 20 MOTION for Preliminary Injunction filed by Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Attachments: # 1 Exhibit Conestoga Wood Specialities v. Sebelius (3d Cir.)) (Humphreys, Bradley) (Entered: 02/14/2013)
30 ATTORNEY APPEARANCE: Robert C. Davis appearing on behalf of Bioethics Defense Fund, Life Legal Defense Foundation, Breast Cancer Prevention Institute (Davis, Robert) (Entered: 02/19/2013)
31 MOTION for Leave to File Amici Curiae Brief by Bioethics Defense Fund, Breast Cancer Prevention Institute, Life Legal Defense Foundation. (Davis, Robert) (Entered: 02/19/2013)
32 Amicus Curiae BRIEF by Bioethics Defense Fund, Breast Cancer Prevention Institute, Life Legal Defense Foundation (Davis, Robert) (Entered: 02/19/2013)
33 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Bioethics Defense Fund (Davis, Robert) (Entered: 02/19/2013)
34 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Breast Cancer Prevention Institute (Davis, Robert) (Entered: 02/19/2013)
35 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Life Legal Defense Foundation (Davis, Robert) (Entered: 02/19/2013)
36 NOTICE by All Defendants re 20 MOTION for Preliminary Injunction of Supplemental Authority (Attachments: # 1 Exhibit Briscoe v. Sebelius) (Humphreys, Bradley) (Entered: 02/28/2013)
37 NOTICE by All Plaintiffs Supplemental Authority (Attachments: # 1 Exhibit Exhibit 1) (Mersino, Erin) (Entered: 03/01/2013)
38 NOTICE of Non−Party Fault by All Defendants, NOTICE by All Defendants re 37 Notice (Other) Response to Plaintiffs Notice of Supplemental Authority (Attachments: # 1 Index of Exhibits, # 2 Exhibit Sioux Chief − Notice of Non−Opposition, # 3 Exhibit Legatus − Mot. to Hold Appeal in Abeyance) (Humphreys, Bradley) (Entered: 03/05/2013)
39 ORDER granting 20 Motion for Preliminary Injunction. Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 03/14/2013)
40 ORDER granting 31 Motion for Leave to File; granting 27 Motion for Leave to File. Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 03/14/2013)
41 NOTICE OF INTERLOCUTORY APPEAL by All Defendants re 39 Order on Motion for Preliminary Injunction. Fee Status: No Fee Paid. (Humphreys, Bradley) (Entered: 05/13/2013)

Case: 2:12-cv-15488 As of: 04/17/2016 09:51 PM EDT 6 of 6

05/13/2013 05/16/2013
05/20/2013 06/26/2013 10/07/2013 11/12/2013
11/19/2013 11/20/2013 11/22/2013 12/20/2013 10/23/2014
11/25/2014 12/03/2014 02/09/2015 03/09/2015

42 Certificate of Service re 41 Notice of Interlocutory Appeal. (DWor) (Entered: 05/13/2013)
43 MOTION to Stay Proceedings by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Order Staying Case, Weingartz Supply Co., # 3 Exhibit Order Staying Case, Triune Health Group, Inc., # 4 Exhibit Order Staying Case, Conestoga Wood Specialities Corp., # 5 Exhibit Order Staying Case, Hobby Lobby Stores, Inc.) (Humphreys, Bradley) (Entered: 05/16/2013)
44 RESPONSE to 43 MOTION to Stay Proceedings filed by All Plaintiffs. (Mersino, Erin) (Entered: 05/20/2013)
45 ORDER granting 43 Motion to Stay. Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 06/26/2013)
46 MOTION to Reopen Case Motion to Remove Stay for a Limited Purpose by All Plaintiffs. (Mersino, Erin) (Entered: 10/07/2013)
47 ORDER for Defendant to Show Cause why this Court should not grant Plaintiff's Motion. Show Cause Response due by 11/19/2013 Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 11/12/2013)
48 RESPONSE to 46 MOTION to Reopen Case Motion to Remove Stay for a Limited Purpose filed by All Defendants. (Humphreys, Bradley) (Entered: 11/19/2013)
49 RESPONSE TO ORDER TO SHOW CAUSE by All Defendants. (Humphreys, Bradley) (Entered: 11/20/2013)
50 REPLY to Response re 46 MOTION to Reopen Case Motion to Remove Stay for a Limited Purpose filed by All Plaintiffs. (Mersino, Erin) (Entered: 11/22/2013)
51 ORDER denying 46 Motion to Reopen Case. Signed by District Judge Lawrence P. Zatkoff. (MVer) (Entered: 12/20/2013)
52 ORDER from U.S. Court of Appeals − Sixth Circuit re 41 Notice of Interlocutory Appeal filed by United States Department of Treasury, Timothy Geithner, Kathleen Sebelius, Hilda L Solis, United States Department of Health and Human Services, United States Department of Labor [Appeal Case Number 13−1654] (KKra) (Entered: 10/30/2014)
53 Joint MOTION to Reopen Case and Enter Judgment by All Plaintiffs. (Attachments: # 1 Exhibit) (Mersino, Erin) (Entered: 11/25/2014)
54 INJUNCTION AND JUDGMENT. Signed by District Judge Lawrence P. Zatkoff. (DPer) (Entered: 12/03/2014)
55 NOTICE by All Plaintiffs Joint Status Report (Mersino, Erin) (Entered: 02/09/2015)
56 NOTICE by All Plaintiffs Joint Status Report (Mersino, Erin) (Entered: 03/09/2015)