UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

GROTE INDUSTRIES, LLC an Indiana

)

limited liability company,

)

GROTE INDUSTRIES, INC. an Indiana

)

corporation,

)

WILLIAM D. GROTE, III,

)

WILLIAM DOMINIC GROTE, IV,

)

WALTER F. GROTE, JR.,

)

MICHAEL R. GROTE,

)

W. FREDERICK GROTE, III,

)

JOHN R. GROTE,

)

)

Plaintiffs,

)

)

vs.

)

)

KATHLEEN SEBELIUS in her official

)

capacity as Secretary of the United States

)

Department of Health and Human Services, )

HILDA L. SOLIS in her official capacity as )

Secretary of the United States Department of )

Labor,

)

TIMOTHY GEITHNER in his official

)

capacity as Secretary of the United States

)

Department of the Treasury,

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES,

)

UNITED STATES DEPARTMENT OF

)

LABOR,

)

UNITED STATES DEPARTMENT OF THE )

TREASURY,

)

)

Defendants.

)

No. 4:12-cv-00134-SEB-DML

ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

This cause is before the Court on Plaintiffs’ Motion for Preliminary Injunction [Docket No. 7], filed on October 30, 2012. Plaintiffs, Grote Industries, LLC; Grote Industries, Inc.;
1

William D. Grote III; William Dominic Grote, IV; Walter F. Grote, Jr.; Michael R. Grote; W. Frederick Grote, III; and John R. Grote bring this claim against Kathleen Sebelius in her official capacity as Secretary of the United States Department of Health and Human Services (“HHS’); Hilda S. Solis in her official capacity as Secretary of the United States Department of the Treasury; the United States Department of Health and Human Services; United States Department of Labor; and the United States Department of the Treasury, challenging preventive care coverage regulations (“the mandate”) issued under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (“Affordable Care Act” or “ACA”), which Plaintiffs allege require them “to pay for and otherwise facilitate the insurance coverage and use of abortifacient drugs, contraception, sterilization, and related education and counseling.” Compl. ¶ 7. Plaintiffs contend that the mandate violates their statutory rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”) and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (“APA”) as well as their constitutional rights under the First and Fifth Amendments to the United States Constitution. Plaintiffs seek both declaratory and injunctive relief.
Presently before the Court is the Plaintiffs’ Motion for Preliminary Injunction seeking an order prohibiting Defendants from enforcing the mandate against them and others similarly situated when it goes into effect on January 1, 2012. After review of the parties’ submissions, we DENY Plaintiffs’ request for injunctive relief.
Factual Background The Affordable Care Act, signed into law on March 23, 2010, effected a variety of significant changes to the healthcare system, including in the area of preventive care services.
2

Section 1001 of the Act, which includes the preventative services coverage provision relevant to the case at bar, requires all group health plans and health insurance issuers that offer nongrandfathered group or individual health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additional preventive care and screenings … as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” 42 U.S.C. § 300gg-13(a)(4).
The Health Resources and Services Administration (“HRSA”) commissioned the Institute of Medicine (“IOM”) to develop recommendations for implementing such preventive care for women. Upon review, the IOM issued a report recommending that the HRSA guidelines include, inter alia, “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” INSTITUTE OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM Report”), available at http://iom.edu/Reports/2011/ Clinical-Preventive-Services-for-Women-Closing-the-Gaps/Report-Brief.aspx (last visited December 20, 2012). Contraceptive methods approved by the Food and Drug Administration (“FDA”) include diaphragms, oral contraceptive pills, emergency contraceptives, such as Plan B and Ella, and intrauterine devices. FDA, Birth Control Guide, available at www.fda.gov/ downloads/ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited December 20, 2012).
On August 1, 2011, HRSA adopted IOM’s recommendations, subject to an exemption relating to certain religious employers authorized by an amendment to the interim final regulations issued the same day. See 76 Fed. Reg. 46621; 45 C.F.R. § 147.130. On February 15, 2012, HHS, the Department of Labor, and the Department of Treasury published rules finalizing
3

the HRSA guidelines. There are certain exemptions to the preventive services provision of the
Affordable Care Act. Grandfathered health plans, to wit, plans that were in existence on March
23, 2010 and have not undergone any of a defined set of changes, are not subject to the mandate.
See 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140. Certain
religious employers are exempt from providing plans that cover contraceptive services. To
qualify as a “religious employer” under the exemption, an employer must satisfy 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)(1)(iv)(B).1 There is also a temporary enforcement safe-harbor provision
applicable to non-grandfathered group health plans sponsored by certain non-profit organizations
with religious objections to contraceptive coverage (and any associated group health insurance
coverage). 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012). Finally, employers with fewer than
fifty employees are not required to provide any health insurance plan. 26 U.S.C. §
4980H(c)(2)(A).
The individual plaintiffs (collectively, “the Grote Family”) are members of a family that
owns and operates Grote Industries, LLC and Grote Industries, Inc. (“Grote Industries”), a
privately held, for-profit business that manufactures vehicle safety systems, headquartered in
Madison, Indiana. Grote Industries currently employs approximately 464 full-time employees in
the United States. The members of the Grote Family are believing and practicing Catholic
Christians. Although Grote Industries is a for-profit, secular corporation, the Grote Family seeks
1 The religious employer exemption was modeled after the religious accommodation used in multiple states already requiring health insurance issuers to cover contraception. 76 Fed. Reg. at 46,623.
4

to run Grote Industries in a manner that reflects their religious beliefs and believes that their operation of Grote Industries “must be guided by ethical social principles and Catholic religious and moral teachings.” Compl. ¶ 36. The Grote Family follows the moral teachings of the Catholic Church and “believes that God requires respect for the sanctity of human life and for the procreative and unitive character of the sexual act in marriage.” Id. ¶ 4. The Grote Family “adhere[s] to the centuries-old biblical view of Christians around the world, that every human being is made in the image and likeness of God from the moment of conception/fertilization, and that to help destroy such an innocent being, including in the provision of coverage in health insurance, would be an offense against God.” Id. ¶ 5. Accordingly, the Grote Family believes that “it would be immoral and sinful for them to intentionally participate in, pay for, facilitate, or otherwise support abortifacient drugs,2 contraception, sterilization, and related education and counseling” as required by the preventive care provision of the Affordable Care Act. Id. ¶ 39.
Consistent with their religious beliefs, the Grote Family provides health insurance benefits to their employees that omit coverage of abortifacient drugs, contraception, and sterilization. Id. ¶¶ 6, 47. The health insurance plan provided by Grote Industries is self-insured, and the plan year renews each year on January 1. It is not grandfathered under the Act. As a secular, for-profit corporation, Grote Industries does not fall within the Act’s definition of a “religious employer” and is ineligible for the protection of the safe-harbor provision. Thus, the mandate takes effect as to the corporation’s employee health plan on January 1, 2013.
Plaintiffs contend that Grote Industries is unable to simply avoid the mandate by refusing to provide health care insurance to its employees because it would incur a penalty of approximately $2,000 per employee per year by doing so. Nor can it continue to offer its current
2 Plaintiffs use the term “abortifacients” to refer to contraceptives which they state “may cause the demise of an already conceived … human embyo.” Pls.’ Compl. ¶¶ 54-55.
5

self-insured plan that omits abortifacients, contraceptives, and sterilization because that course of action would subject Grote Industries to penalties of approximately $100 per employee, per day. If they fail to comply with the mandate, Grote Industries could also be subject to a range of enforcement mechanisms, including civil actions by the Secretary of Labor or by plan participants and beneficiaries. Plaintiffs seek a preliminary injunction to prevent Defendants from enforcing the mandate against them, arguing that the mandate violates their First and Fifth Amendment rights as well as their statutory rights under the RFRA and the APA.
Legal Analysis I. Standard of Review
To obtain a preliminary injunction, the moving party must demonstrate: (1) a reasonable likelihood of success on the merits; (2) no adequate remedy at law; and (3) irreparable harm absent the injunction. Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Dept. of Health, 699 F.3d 962, 972 (7th Cir. 2012). If the moving party fails to demonstrate any one of these three threshold requirements, the injunctive relief must be denied. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States, Inc., 549 F.3d 1079, 1086 (7th Cir. 2008) (citing Abbot Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992)). However, if these threshold conditions are met, the Court must then assess the balance of the harm – the harm to Plaintiffs if the injunction is not issued against the harm to Defendants if it is issued – and determine the effect of an injunction on the public interest. Id. “The more likely it is that [the moving party] will win its case on the merits, the less the balance of harms need weigh in its favor.” Id. at 1100.
II. Discussion
6

This lawsuit is one of a number of similar suits that have been filed in various venues throughout the country challenging the preventive services coverage provision of the Affordable Care Act. We have found recent decisions rendered by district courts both in the Seventh Circuit as well as in other circuits to be instructive and find the analysis set forth in O’Brien v. United States Department of Health and Human Services, ___ F. Supp. 2d ___, 2012 WL 4481208 (E.D. Mo. Sept. 28, 2012), appeal docketed, No. 12-3357 (8th Cir. Oct. 4, 2012),3 and Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012), appeal docketed, No. 12-6294 (10th Cir. Nov. 20, 2012), particularly persuasive.
In the case at bar, Plaintiffs have advanced numerous theories of relief and the Court is required to address them within a very brief span of time. The motion for injunctive relief did not become fully briefed until December 6, 2012. In addition, there is nothing about these complex issues that lends them to superficial review and analysis. The rulings below reflect our best efforts under these challenging circumstances.
A. The Religious Freedom Restoration Act
The Religious Freedom Restoration Act of 1993 (“RFRA”) prohibits the federal government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that the application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a), (b). RFRA was enacted by Congress in response to
3 In their reply brief, Plaintiffs stress that the district court’s order in O’Brien was recently stayed pending appeal, in effect granting the plaintiff corporation a preliminary injunction. O’Brien v. United States Department of Health and Human Servs., No. 12-3357 (8th Cir. Nov. 28, 2012). Plaintiffs apparently believe that the Eighth Circuit’s onesentence order constitutes a holding that a substantial burden and successful RFRA claim had been found, which, of course it does not.
7

Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), where the Supreme Court held that, under the First Amendment, “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” Id. at 879 (internal quotations omitted). Congress intended RFRA “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.” 42 U.S.C. § 2000bb(b)(1).
In the case at bar, Defendants contend that Grote Industries, as a secular, for-profit corporation, cannot “exercise” a religion, and thus, cannot assert claims under RFRA or the First Amendment Free Exercise Clause. While we too have doubts regarding whether a secular, forprofit corporation can be deemed to possess free exercise rights as expressed by the district court in Hobby Lobby, 870 F. Supp. 2d at 1288, 1291-92 (holding that secular, for-profit corporations do not have rights under the Free Exercise Clause and are not “persons” for purposes of the RFRA), for the reasons detailed below, we find that the preventive services coverage mandate does not place a “substantial burden” on either Grote Industries or the individual plaintiffs, and does not violate Plaintiffs’ rights under the Free Exercise Clause. Thus, we decline to reach the issue of whether a secular, for-profit corporation is capable of exercising a religion within the meaning of RFRA or the First Amendment.
In order to show a likelihood of prevailing on the merits of their RFRA claim, Plaintiffs must initially show that a substantial burden has been placed by the challenged action on their religious exercise. Under the RFRA, “exercise of religion” is defined broadly to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5. We do not question that Plaintiffs’ religious beliefs are sincerely held. Nor
8

is it within the purview of this Court to make an assessment as to the centrality of Plaintiffs’ opposition to contraception coverage to their exercise of the Catholic religion, as the RFRA “makes clear that it does not matter whether the particular exercise of religion at issue is or is not central to the individual’s religious beliefs.” Hobby Lobby, 870 F. Supp. 2d at 1293 (citing 42 U.S.C. § 2000cc-5(7)(A); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1314 n.6 (10th Cir. 2010), cert. denied, ___ U.S. ___, 131 S.Ct. 469 (2010)); see also Employment Div. v. Smith, 494 U.S. at 887 (“Judging the centrality of different religious practices is akin to the unacceptable ‘business of evaluating the relative merits of differing religious claims.’”) (quoting United States v. Lee, 455 U.S. 252, 263 n.2 (1982) (Stevens, J., concurring)). However, the sincerity of one’s beliefs and whether those beliefs have been substantially burdened are two separate inquiries. At this preliminary stage, Plaintiffs have failed to establish that they have a reasonable likelihood of establishing that the mandate substantially burdens their practice of religion.
Neither the RFRA nor the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which adopted RFRA’s same “substantial burden” test, defines the term. However, the Seventh Circuit has held that a substantial burden is “one that necessarily bears a direct, primary, and fundamental responsibility for rendering religious exercise … effectively impracticable.” Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752, 761 (7th Cir. 2003) (RLUIPA case); see also Midrash Shephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (“[A] ‘substantial burden’ must place more than an inconvenience on religious exercise; a ‘substantial burden’ is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.”). That sort of direct connection is missing here.
9

The conclusion that a substantial burden requires an element of directness is also supported by the free exercise jurisprudence predating Employment Division v. Smith. Courts look to such case law in determining whether a particular burden on religious exercise is substantial. See O’Brien, 2012 WL 4481208, at *5 (citing Goodall by Goodall v. Stafford Cnty. Sch. Bd., 60 F.3d 168, 171 (4th Cir. 1995) (“[S]ince RFRA does not purport to create a new substantial burden test, we may look to pre-RFRA cases in order to assess the burden on the plaintiffs for their RFRA claim); Living Water Church of God v. Charter Twp. of Meridian, 2007 WL 4322157, at *7 (6th Cir. Dec. 10, 2007) (“Congress has cautioned that we are to interpret ‘substantial burden’ in line with the Supreme Court’s ‘Free Exercise’ jurisprudence, which suggests that ‘substantial burden’ is a difficult threshold to cross.”)). Two such cases, Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1975), present the test that RFRA was intended to restore and thus are especially relevant. Both cases support the view that the burden on religious exercise “must be more than insignificant or remote.” O’Brien, 2012 WL 4481208, at *5. The plaintiff in Sherbert was forced to “choose between following the precepts of her religion [by resting, and not working on her Sabbath] and forfeiting [unemployment] benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Sherbert, 374 U.S. at 404. Similarly, in Yoder, the state compulsory-attendance law at issue “affirmatively compel[led] [plaintiffs], under threat of criminal sanction, to perform acts undeniably at odds with the fundamental tenets of their religious beliefs.” Yoder, 406 U.S. at 218.
In line with the analysis set forth in O’Brien and Hobby Lobby, we conclude that the burden the mandate imposes on Plaintiffs here is likely too remote and attenuated to be considered substantial. As explained in O’Brien,
10

[T]he challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. … [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 [the company’s] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. The Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.
2012 WL 4481208, at *6; accord Hobby Lobby, 870 F. Supp. 2d at 1294. Plaintiffs’ advocacy of
their beliefs opposing contraceptives can continue much as we assume it did before this statute
was enacted. Since we have not been informed as to Grote Industries’s employees’ intentions
with respect to obtaining such coverage, and have no information with respect to Grote
Industries’s employment policies, there is no argument or evidence to indicate that any change
will necessarily be effected by this statute in terms of Grote Industries’s concerns as a self-
insured business.
We acknowledge that Plaintiffs object not just to the use of contraceptives, but to the
coverage itself, and thus, argue that the fact that the use of contraceptives depends on the
independent decisions of third parties is irrelevant. But, as recognized in O’Brien,
RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.
11

2012 WL 4481208, at *6. We can imagine a wide variety of individual behaviors that might give rise to religiously-based scruples or opposition, such as alcohol consumption or using drugs or tobacco, or homosexual-related behaviors, all of which can threaten health conditions requiring treatment and care. If the financial support for health care coverage of which Plaintiffs complain constitutes a substantial burden, secular companies owned by individuals objecting on religious grounds to such behaviors, including those businesses owned by individuals objecting on religious grounds to all modern medical care, could seek exemptions from employer-provided health care coverage for a myriad of health care needs, or for that matter, for any health care at all to its employees. While distinguishable on other grounds, the holding in Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011), rejected a RFRA challenge to the individual mandate of the Affordable Care Act as applied to plaintiffs whose religion forbids seeking medical care. The court held that the individual mandate’s requirement that the plaintiffs contribute to a health care plan that does not align with their religious beliefs “does not rise to the level of a substantial burden … Plaintiffs have failed to allege any facts demonstrating that this conflict is more than a de minimis burden on their Christian faith.” Id. at 42.
Nor do we find, particularly on the basis of this preliminary record, that the fact that the group health plan at issue here is self-insured changes our analysis. Plaintiffs maintain that their self-insured status is determinative because it removes one of the levels of separation discussed in O’Brien, resulting in a more direct burden on their religious freedom. Plaintiffs cite the recent district court decision holding that the mandate substantially burdened the plaintiff’s religious exercise under the RFRA, where the fact that the plaintiff corporation was self-insured was a “crucial distinction.” Tyndale House Publishers, Inc. v. Sebelius, ___ F. Supp. 2d ___, 2012 WL 5817323, at *13 (D.D.C. Nov. 16, 2012). But see Hobby Lobby, 870 F. Supp. 2d at 23 (holding
12

that any burden on plaintiffs who were self-insured was too attenuated to be substantial under RFRA).
We disagree with that conclusion. Regardless of whether the corporation is self-insured, it remains the fact that any burden on Plaintiffs’ religious exercise rests on “a series of independent decisions by health care providers and patients covered by [Grote Industries’s plan].” O’Brien, 2012 WL 4481208, at *6. Further, even if a health plan is self-insured, it remains a separate legal entity from the sponsoring employer. See Korte v. U.S. Dept. of Health and Human Servs., 2012 WL 6553996, at *9 (S.D.Ill. Dec. 14, 2012) (recognizing that “the RFRA ‘substantial burden’ inquiry makes clear that business forms and so-called ‘legal fictions’ cannot be entirely ignored”). Thus, we cannot say, at least without further factual development of the exact structure of Plaintiffs’ self-insured plan, that the fact that the plan is self-insured alone bridges the attenuated gap between payment into the fund and the eventual use of the funds discussed in O’Brien and Hobby Lobby.
Because we are not persuaded that the mandate imposes a substantial burden on Plaintiffs’ free exercise of religion, we conclude that Plaintiffs have failed to establish a reasonable likelihood of success on the merits of their RFRA claim, and thus, we need not proceed to determine whether the mandate satisfies strict scrutiny.
B. First Amendment – Free Exercise Clause
The Free Exercise Clause of the First Amendment provides that Congress shall make no law “prohibiting the free exercise” of religion. However, the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion
13

prescribes (or proscribes). Employment Div. v. Smith, 494 U.S. at 879 (internal punctuation omitted). In line with the other district courts who have addressed this question and found the mandate neutral and generally applicable, we find that Plaintiffs have failed to establish a reasonable likelihood of success on their free exercise claim.
A law is not neutral if “the object of the law is to infringe upon or restrict practices because of their religious motivation.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993). In determining whether a law has such an impermissible object, courts look to the law’s text, legislative history, and the actual effect of the law in operation. Lukumi, 508 U.S. at 534, 535, 540. Here, the text of the mandate contains no mention of religion, nor is an impermissible object reflected in the legislative history, as the purpose of the regulations is a secular one, to wit, to promote public health and gender equality.
Although Plaintiffs do not dispute these facts, they contend that the mandate is nonetheless not neutral because the exemption for religious employers divides religious objectors into favored and disfavored groups without any discernible secular reason, exempting “only those religious organizations whose ‘purpose’ is to inculcate religious values; who ‘primarily’ employ and serve co-religionists; and who qualify as churches or religious orders under the tax code.” Pls.’ Br. at 36 (citing 45 C.F.R. § 147.130(a)(iv)(B)(1)-(4)). However, as recognized by the district court in Hobby Lobby, “[c]arving out an exemption for defined religious entities does not make a law nonneutral as to others.” 870 F. Supp. 2d at 1289. In fact, it tends to support an argument in favor of neutrality. Id. (“Using well established criteria to determine eligibility for an exemption based on religious belief, such as the nonsecular nature of the organization and its nonprofit status, the ACA, through its implementing rules and regulations, both recognizes and
14

protects the exercise of religion.”) (citing O’Brien, 2012 WL 4481208, at *8). The mandate is not rendered nonneutral merely because the exception does not extend as far as Plaintiffs wish.
To be generally applicable, a law must not “in a selective manner impose burdens only on conduct motivated by religious belief.” Lukumi, 508 U.S. at 543. Plaintiffs argue that the mandate is not generally applicable because “it exempts 191 million Americans on a variety of grounds.” Pls.’ Br. at 37. Plaintiffs contend that, because the Affordable Care Act provides Defendants “unlimited discretion” to establish and craft exemptions, it deprives the mandate of general applicability. Id. at 37 (citing 42 U.S.C. § 300gg-13). Again, we disagree. General applicability does not require universal application and the mandate here does not “pursue[] … governmental interest only against conduct motivated by religious belief.” Lukumi, 508 U.S. at 545. As recognized by the district court in O’Brien, “[t]he regulations in this case apply to all employers not falling under an exemption, regardless of those employers’ personal religious inclinations.” 2012 WL 4481208, at *8. Thus, “it is just not true … that the burdens of the [regulations] fall on religious organizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536).
For the foregoing reasons, we hold that there is a substantial likelihood that the mandate will be found to be a neutral law of general applicability that does not offend the First Amendment’s Free Exercise Clause. Accordingly, Plaintiffs have failed to establish a reasonable likelihood of success on this claim.
C. First Amendment – Establishment Clause
The “clearest command of the Establishment Clause” is that the government must not show preference to any religious denomination over another. Larson v. Valente, 456 U.S. 228,
15

244 (1982). The Establishment Clause also protects against “excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, 613 (1971) (internal quotations omitted). Plaintiffs contend that the mandate’s exemption for “religious employers” violates the First Amendment’s Establishment Clause, because it impermissibly “adopt[s] a caste system of different religious organizations and belief-levels” and requires the government to unlawfully scrutinize an organization’s religious tenets in determining whether the exemption is applicable. Pls.’ Br. at 38-39.
Here, the religious employer exemption applies equally to all denominations and does not prefer one religion over another or otherwise discriminate among religions. An employer is eligible for the exemption, regardless of denomination, if its purpose is to inculcate religious values, it primarily employs and serves persons sharing those values, and it is a nonprofit religious organization as defined in certain provisions of the Internal Revenue Code. 45 C.F.R. § 147.130(a)(1)(iv)(B). It is true, as Plaintiffs allege, that the exemption does differentiate between types of religious organizations based on their structure and purpose. But the Establishment Clause does not prohibit the government from making such distinctions when granting religious accommodations as long as the distinction drawn by the regulations between exempt and non-exempt entities is not based on religious affiliation. See, e.g., Walz v. Tax Comm’n of City of New York, 397 U.S. 664 (1970) (rejecting Establishment Clause challenge to law exempting from property taxes property of religious organizations used exclusively for religious worship); Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995) (upholding a Social Security tax exemption only for members of organized religious sects, despite the fact that “some individuals receive exemptions, and other individuals with identical beliefs do not,” because the purpose of the exemption was not to discriminate among religious denominations).
16

Given that the exemption’s definition of “religious employer” does not refer to any particular denomination, the criteria for the exemption focus on the purpose and structure of the organization rather than its affiliation, and the exemption is available to any and all religions, the mandate clearly does not prefer certain religions over others, and thus, is not likely to be found to violate the Establishment Clause in this manner.
Plaintiffs have also failed to establish any likelihood of success in showing excessive entanglement. Plaintiffs concede that they do not satisfy the non-profit criteria required for religious employer status. Because that alone would disqualify Grote Industries from being a “religious employer” under the exemption’s definition, the government would not be required reach an assessment of whether the company’s purpose is to inculcate religious values and whether it primarily employs and serves persons sharing those values nor engage in any other inquiry that would pose a potential entanglement issue.
D. First Amendment – Free Speech Clause
Plaintiffs allege that the mandate violates their rights protected by the First Amendment’s Free Speech Clause by coercing Grote Industries to subsidize speech that is contrary to Plaintiffs’ religious beliefs. Specifically, Plaintiffs argue that the mandate compels expressive speech by requiring Grote Industries to cover “education and counseling” that Plaintiffs contend will be in favor of abortifacients.
The First Amendment protects not only the freedom to speak, but also the freedom from compelled speech. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (holding unconstitutional a statute requiring recitation of the pledge of allegiance). It also encompasses the right to refuse financial support to fund speech with which one disagrees.
17

United States v. United Foods, Inc., 533 U.S. 405 (2001) (holding a statute requiring mushroom producers to contribute towards advertisements promoting mushroom sales unconstitutional). However, as recognized by the district court in O’Brien, the problem with Plaintiffs’ argument is that the mandate does not require Plaintiffs to subsidize speech and instead only regulates conduct. Although it is true that the mandate expressly requires subsidization for education and counseling services and the receipt of health care usually involves a conversation between a doctor and a patient, “this speech is merely incidental to the conduct of receiving health care.”4 O’Brien, 2012 WL 4481208 at *12 (citing Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 62 (2006)).
In assessing the constitutionality of speech subsidies, the Supreme Court has recognized that, “First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that it favors.” United Foods, 533 U.S. at 411. However, again, as recognized by the district court in O’Brien, here, the subsidized speech “is an unscripted conversation between a doctor and a patient, not political propaganda in favor of one candidate, an amicus brief espousing one side of an issue, or advertisements in favor of a particular product.” 2012 WL 4481208, at *12. Although Plaintiffs contend that the subsidy for “education and counseling” the mandate requires them to provide will be “in favor of abortifacients,” Plaintiffs simply cannot know this to a certainty. Adoption of Plaintiffs’ argument “would mean that an employer’s disagreement with the subject of a discussion between an employee and her physician would be a basis for precluding all government efforts to regulate health coverage.” Id.
4 This is another way of saying that there is no substantial burden on religious exercise.
18

Nor are we convinced by Plaintiffs’ argument that the conduct the mandate requires them to subsidize is “inherently expressive” so as to entitle it to First Amendment protection. See Rumsfeld, 547 U.S. at 66. An employer who provides a health plan which covers contraceptive services along with a myriad of other medical services because it is required by law to do so is simply not engaged in the same type of conduct that the Supreme Court has recognized as inherently expressive. Compare id. at 65-66 (making space for military recruiters on campus is not conduct that indicates a college’s support for, or sponsorship of, recruiters’ message) with Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 568-70 (1995) (openly gay, lesbian, and bisexual group marching in parade is expressive conduct) and Barnette, 319 U.S. 624 (1943) (refraining from saluting American flag is expressive conduct); see also O’Brien, 2012 WL 4481208, at *12 (“Giving or receiving health care is not a statement in the same sense as wearing a black armband or burning an American flag.”) (internal citations omitted).
Plaintiffs here remain free to say whatever they would like to express about contraceptives and abortifacients, including to discourage their employees’ use of such products and services. Plaintiffs have failed to persuade us that they have a reasonable likelihood of establishing that the mandate unlawfully compels them to speak, to subsidize speech, or to subsidize expressive conduct in violation of the Free Speech Clause of the First Amendment.
E. Fifth Amendment – Due Process
Plaintiffs next allege that the mandate violates the Fifth Amendment’s Due Process Clause because it “creates a standardless, blank check for Defendants to discriminatorily select whatever they want to call ‘religious’ and offer or withhold whatever accommodations they
19

choose.” Pls.’ Br. at 40. Although the exact scope of Plaintiffs’ due process challenge is not entirely clear, it appears Plaintiffs contend that “the statute,” 42 U.S.C. § 300gg-13, is unconstitutionally vague because it contains no standards or guidance regarding “who counts as religious and what kind of accommodation such religious persons or entities should be provided.” Pls.’ Br. at 40.
A law is not unconstitutionally vague unless it “fails to provide a person of ordinary intelligence fair notice of what is prohibited” or “is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008) (citations omitted). It is clear that Plaintiffs are not suffering from any misapprehensions as to the meaning of the regulations or what the mandate requires of them, and thus, we simply cannot find that Plaintiffs have a reasonable likelihood of establishing that the regulations as applied to them are vague. See Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2720 (2010) (“[T]he dispositive point here is that the statutory claims are clear in their application to plaintiffs’ proposed conduct, which means that plaintiffs’ vagueness challenge must fail.”); Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.”).
Nor can there be a due process violation based simply on the fact that the statute delegates to administrative agencies the responsibility to promulgate implementing regulations. See Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (recognizing that “Congress simply cannot do its job absent an ability to delegate power under broad general directives,” and upholding “Congress’ ability to delegate power under broad standards”). Plaintiffs cite no precedent to the contrary. Accordingly, at this early stage of the litigation, we find that Plaintiffs have failed to establish a likelihood of success on their Fifth Amendment Due Process claim.
20

F. Administrative Procedures Act
Finally, Plaintiffs claim that Defendants violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., by failing to follow the procedure set forth in § 553, which requires administrative agencies to: (1) publish notice of proposed rulemaking in the Federal Register; (2) “give interested parties an opportunity to participate in the rule making through submission of written data, views, or argument”; and (3) consider all relevant matter presented before adopting a final rule that includes a statement of its basis and purpose.5 5 U.S.C. § 553(b), (c). Section 706 of the APA provides that courts “shall hold unlawful and set aside agency action, findings, and conclusions found to be without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). Specifically, Plaintiffs contend that Defendants “refus[ed] to satisfy their statutory duty to actually ‘consider’ objections issued during the comment period.” Pls.’ Br. at 41.
We are not persuaded that Plaintiffs have established a reasonable likelihood of success on this claim. On July 19, 2010, Defendants published the interim final regulations. Although comments on the anticipated guidelines were not requested in the interim final regulations, Defendants received “considerable feedback” regarding which preventive series for women should be covered without cost sharing. In response to these comments, on August 1, 2011, Defendants issued an amendment to the interim final regulations which authorized the religious employer exemption. 76 Fed. Reg. 46,621. That amendment was issued pursuant to express statutory authority granting Defendants discretion to promulgate regulations relating to health
5 In their Complaint, Plaintiffs also allege that the mandate violates the APA because: (1) Defendants arbitrarily and capriciously failed to consider the impact of the mandate on secular, for-profit employers and failed to exempt Plaintiffs and other similar organizations from the scope of the regulations; and (2) it conflicts with two federal prohibitions relating to abortions. However, Plaintiffs failed to develop these allegations in their briefing in support of their motion for preliminary injunction, and thus, we do not consider them at this time.
21

coverage on an interim final basis, which means without requiring prior notice and comment. Id. at 46,624. Defendants also made a determination that issuance of the regulations in interim final form was in the public interest, and thus, there was “good cause” to dispense with the APA’s notice-and-comment requirements. Id.
Defendants subsequently requested comments on the amendment for a period of 60 days and specifically on the definition of “religious employer” contained in the exemption authorized by the amendment and after receiving comments, adopted the definition contained in the amended interim final regulations and created the temporary enforcement safe harbor period during which they would consider additional amendments to the regulations to further accommodate the religious objections to providing contraception coverage of certain religious organizations. 77 Fed. Reg. at 8726-27. Plaintiffs have pointed to nothing that would suggest such actions are violative of the APA, and thus, we cannot find that Plaintiffs have a reasonable likelihood of establishing that Defendants failed to satisfy the APA’s procedural requirements.
III. Conclusion
For the reasons detailed in this entry, we find that Plaintiffs have failed to establish a reasonable likelihood of success on the merits of any of their claims. Because likelihood of success is a threshold requirement for injunctive relief, we need not proceed further in our analysis. Accordingly, Plaintiffs’ Motion for Preliminary Injunction is DENIED.
IT IS SO ORDERED.

Date: _____1__2_/2_7_/_2_0_1_2_______________ 22

_______________________________
SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana

23

Distribution: Matthew S. Bowman ALLIANCE DEFENDING FREEDOM mbowman@alliancedefendingfreedom.org Michael J. Cork BAMBERGER, FOREMAN, OSWALD AND HAHN, LLP mcork@bamberger.com Michael A. Wilkins BROYLES KIGHT & RICAFORT, P.C. mwilkins@bkrlaw.com Bryan H. Beauman STURGILL, TURNER, BARKER & MOLONEY, PLLC bbeauman@sturgillturner.com Shelese M. Woods UNITED STATES ATTORNEY’S OFFICE shelese.woods@usdoj.gov Jacek Pruski, US DEPARTMENT OF JUSTICE jacek.pruski@usdoj.gov
24

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

GROTE INDUSTRIES, LLC an Indiana

)

limited liability company,

)

GROTE INDUSTRIES, INC. an Indiana

)

corporation,

)

WILLIAM D. GROTE, III,

)

WILLIAM DOMINIC GROTE, IV,

)

WALTER F. GROTE, JR.,

)

MICHAEL R. GROTE,

)

W. FREDERICK GROTE, III,

)

JOHN R. GROTE,

)

)

Plaintiffs,

)

)

vs.

)

)

KATHLEEN SEBELIUS in her official

)

capacity as Secretary of the United States

)

Department of Health and Human Services, )

HILDA L. SOLIS in her official capacity as )

Secretary of the United States Department of )

Labor,

)

TIMOTHY GEITHNER in his official

)

capacity as Secretary of the United States

)

Department of the Treasury,

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES,

)

UNITED STATES DEPARTMENT OF

)

LABOR,

)

UNITED STATES DEPARTMENT OF THE )

TREASURY,

)

)

Defendants.

)

No. 4:12-cv-00134-SEB-DML

ORDER DENYING MOTION TO RECONSIDER This cause is back before the Court on Plaintiffs’ December 31, 2012 Motion to Reconsider [Docket No. 41], directed towards our December 27, 2012 Order Denying Plaintiffs’ Motion for Preliminary Injunction [Docket No. 40]. There we ruled inter alia that Plaintiffs had
1

failed to establish a reasonable likelihood of success on the merits of their claim that the preventive care coverage regulations (“the Mandate”) issued under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (“Affordable Care Act”), violate their rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”). We also held that Plaintiffs had failed to establish a likelihood of success on the merits of their constitutional and other statutory claims, brought respectively under the First and Fifth Amendments to the United States Constitution and the Administrative Procedures Act.
Plaintiffs now request that we reconsider that Order in light of the late-breaking emergency ruling by a motions panel of the Court of Appeals for the Seventh Circuit in Korte v. Sebelius, No. 12-3841 (7th Cir. Dec. 28, 2012), which decision was handed down the day following the issuance of our Order. In Korte, the panel majority, over the dissent of Judge Rovner, issued an injunction pending appeal on issues similar to those presented in the case before us, holding that “the Kortes have established a reasonable likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise” under RFRA. Id. at 5.
In their motion for reconsideration, Plaintiffs seek an order, which they characterize as warranted by the Seventh Circuit’s Korte decision, entering the following injunctive directives: “(1) a for-profit corporation and its owners may assert a religious exercise claim; (2) the mandate imposes a substantial burden on the religion of objecting businesses and owners; (3) the government defendants do not establish that the Mandate is the least restrictive means to further a compelling governmental interest; (4) irreparable harm will result to objecting businesses and
2

owners; and (5) the balancing of harms weighs in favor of the objecting businesses and owners.” Pls.’ Mot. at 5.
As our Order made clear, we found that the Mandate did not impose a substantial burden on Plaintiffs’ free exercise of religion under the RFRA and further found that Plaintiffs failed to establish a likelihood of success on the merits of their constitutional and other statutory claims. Accordingly, we did not address whether the Mandate is the least restrictive means to further a compelling governmental interest nor did we assess irreparable harm or the balance of the harms.
We acknowledge that there are substantial similarities between the facts and legal issues presented in the case before us and those in Korte and, of course, while we are entirely respectful of the Seventh Circuit panel’s opinion, we are not bound by it as a precedential ruling because the appellate ruling was not a plenary decision of the Court on the merits, but a grant of emergency relief, based on its preliminary determination. The Court of Appeals order in Korte thus serves in effect as a stay rather than a reversal of the district court’s decision. As recognized by Judge Sykes in writing for the Court in a prior case, United States v. Henderson, 536 F.3d 776 (7th Cir. 2008): “Often a motions panel must decide an issue ‘on a scanty record,’ and its ruling is ‘not entitled to the weight of a decision made after plenary submission.’” Id. at 778 (quoting Johnson v. Burken, 930 F.2d 1202, 1205 (7th Cir. 1991)); see also Homans v. City of Albuquerque, 366 F.3d 900, 905 (10th Cir. 2004) (“[A] motions panel’s decision is often tentative because it is based on an abbreviated record and made without the benefit of full briefing and oral argument.”) (quotations and citations omitted). The panel majority took pains in the Kortes order to emphasize that the motions panel decision did not constitute a plenary ruling by the Court on the merits, specifically, referencing the “early juncture” at which the issues before the panel were being considered, and stating that resolution of the question of
3

“[w]hether the government’s interests qualify as ‘compelling’ remains for later in this interlocutory appeal” and is a “judgment [reserved] for our plenary consideration of the appeal ….” Korte, No. 12-3841, at 6.
At the time we issued our Order, we relied on the legal authorities in place at that time, explicating in detail our reasoning and analysis and final decision in light of the existing facts and applicable precedent. Indeed, our analysis closely tracks the reasoning in Judge Rovner’s dissent in Korte, including, for example, the references to concerns that, if secular, for-profit employers have the right to decline to pay for particular types of medical care to which they object, despite neither the corporation nor the individual owners being involved with the decision to use the objectionable services, “it is not clear … what limits there might be on the ability to limit the insurance coverage the employer provides to its employees, for any number of medical services (or decisions to use particular medical services in particular circumstances) might be inconsistent with an employer’s (or its individual owners’) individual religious beliefs.” Id. at 7; see Grote Indus., LLC v. Sebelius, No. 4:12-cv-134, 2012 WL 6725905, at *6 (S.D. Ind. Dec. 27, 2012) (“We can imagine a wide variety of individual behaviors that might give rise to religiously-based scruples or opposition, such as alcohol consumption or using drugs or tobacco, or homosexual-related behaviors, all of which can threaten health conditions requiring treatment and care. If the financial support for health coverage of which Plaintiffs complain constitutes a substantial burden, secular companies owned by individuals objecting on religious grounds to such behaviors, including those businesses owned by individuals objecting on religious grounds to all modern medical care, could seek exemptions from employer-provided health care coverage for a myriad of health care needs, or for that matter, for any health care at all to its employees.”).
4

Despite the obvious similarities between Korte and our case, and despite the usual, required deference due appellate rulings by a district court, we find that it would be improvident to grant the broad-based requests as framed by Plaintiffs in their motion to reconsider. Their motion for reconsideration requests substantive findings on issues that not only conflict with our prior determinations, they also exceed the scope of the Seventh Circuit’s rulings in Korte. For example, Plaintiffs’ request that we rule that the government cannot establish that the Mandate is the least restrictive means to further a compelling governmental interest does not comport with our prior analysis or that set out in Korte. The panel expressly stated that whether the government’s interests were compelling “remains for later in this interlocutory appeal.” Korte, No. 12-3841, at 6. In addition, Plaintiffs’ request that we find that a for-profit corporation and its owners may assert a religious exercise claim exceeds the Seventh Circuit’s decision, which lacked any substantive ruling as to whether for-profit, secular corporations can be deemed to exercise religion.
Thus, we deny Plaintiffs’ motion for reconsideration. Given the preliminary nature of the Seventh Circuit’s ruling in Korte as well as the procedural posture of our case, Plaintiffs’ only viable avenue to the relief they seek must be through an appeal, which we anticipate will be filed by them forthwith. The Motion to Reconsider accordingly is DENIED.
IT IS SO ORDERED.

Date: ________0_1_/_0_3_/2_0_1_3___________________

_______________________________
SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana

5

Distribution: Matthew S. Bowman ALLIANCE DEFENDING FREEDOM mbowman@alliancedefendingfreedom.org Michael J. Cork BAMBERGER, FOREMAN, OSWALD AND HAHN, LLP mcork@bamberger.com Michael A. Wilkins BROYLES KIGHT & RICAFORT, P.C. mwilkins@bkrlaw.com Bryan H. Beauman STURGILL, TURNER, BARKER & MOLONEY, PLLC bbeauman@sturgillturner.com Shelese M. Woods UNITED STATES ATTORNEY’S OFFICE shelese.woods@usdoj.gov Jacek Pruski, US DEPARTMENT OF JUSTICE jacek.pruski@usdoj.gov
6

 
 Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 1 of 37 PageID #: 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

GROTE INDUSTRIES, LLC, an Indiana limited liability company, GROTE INDUSTRIES, INC., an Indiana corporation, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, WALTER F. GROTE, JR., MICHAEL R. GROTE, W. FREDERICK GROTE, III, and JOHN R. GROTE,

Plaintiffs,

v.

Civil Action No. 4:12-cv-134

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

Defendants.

VERIFIED COMPLAINT

Plaintiffs, Grote Ind ustries, LLC, an Indiana limited liability company; Grote Industries, Inc., an In diana corporation, William D. Grote, III; William Dominic Grote, IV; Walter F. Grote, Jr.; Michael R. Grote; W. Frederick Grote, III; and Joh n R. Grote; by and through their attorneys, allege and state as follows:
NATURE OF THE CASE 1. In this action, the Plaintiffs seek de claratory and injunctive relief for the Defendants’ violations of the Religious Fr eedom Restoration Act, 42 U.S.C. § 2000bb et

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint

Page 1

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 2 of 37 PageID #: 2

seq. (RFRA), the First and Fifth Amendments to the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (APA), by Defendants’ actions in implementing the Patient Protect ion and Affordable Care Act of 2010 (Pub. L. 111-14 8 (March 23, 2010), and Pub. L. 111-152 (March 30, 2010) (hereinafter “PPACA”), in ways that coerce the Plaintiffs and tho usands of other conscientious individuals and entities and to engage in acts they consider sinful an d immoral in violation of their most deeply held religious beliefs.
2. Plaintiffs William D. Grote, III; William Dominic G rote, IV; Walter F. Grote; Michael R. Grote; W. F rederick Grote, III; and John R. Grote ("t he Grote Family") are practicing and believing Catholic Christians.
3. The Grote Family owns and ope rates plaintiffs, Grote Industries, LLC and Grote Industries, Inc. (hereaft er individually and collectively referred t o as "Grote Industries"), a privately held, for profit bu siness manufacturing vehicle safety systems, headquartered in Madison, Indiana. Grote Industries, LLC currently has approximately 464 full-time U.S. employees as of Sept ember 28, 2012. Unless cont ext indicates otherwise, "Plaintiffs" refers collectively to the Grote Family and Grote Industries.
4. The Grote Family seeks to run Grote In dustries in a manner that reflects their sincerely held religious beliefs. The Grote Family, based upon these sincerely held religious beliefs as formed by the moral tea chings of the Catholic Church, b elieves that God requires respect for the sanc tity of human life and for the pr ocreative and unitive character of the sexual act in marriage.
5. The Grote Family and Grote Industries adhere to the centuries-old biblical view of Christians around the world, that every human being is made in the image and likeness of God from the moment of conception/fertil ization, and that to help destroy

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint

Page 2

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 3 of 37 PageID #: 3

such an innocent being, including in the provision of coverag e in health insurance,

would be an offense against God.

6. Applying this religious faith a nd the moral teachings of the Catholic

Church, the Grote Family has concluded that it would be sinful and immoral for them to

intentionally participate in, pay for, facilita te, or otherwise suppo rt abortifacient drugs,

contraception, or sterilization, through he alth insurance coverage they offer at Grote

Industries. As a consequence, the Grote Fami ly provides health insurance benefits to

their employees that omits coverage of

abortifacient drugs, contracep tion, and

sterilization. The Grote Industries health insurance plan is self -insured, and the pla n

year renews each year on January 1, t he next renewal date thus occurring on January 1,

2013.

7. With full knowledge that many religiou s citizens hold the same or similar

beliefs, on February 15, 2012 the Defendants finalized rules through the Departments of

HHS, Labor and Treasury—those rules colle ctively referred to hereinafter as the

“Preventive Services Mandate” or the “Ma ndate”1—that force Plaintiffs to pay for and

1 The Mandate consists of a conglo merate of author ities, including: “Group Health Plans and Hea lth Insurance Issuers Relating to Co verage of Prev entive Services Under th e Patient Protection and Affordable Care Act,” 77 Fed. Reg. 8725 –30 (Feb. 15, 2012); the prior interim f inal rule found at 76 Fed. Reg. 46621–26 (Aug. 3, 2011) which the Feb. 15 rule adopted “without change”; the guidelines by Defendant HHS’s Health Resources an d Services Administration (HRSA), http://www.hrsa.gov/womensguidelines/, mandating that health plans inclu de no-cost-sharing coverage of “All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity” as part of required wom en’s “preventive care”; regulations issued by Defendants in 2010 directing HRSA to develop those guidelines, 75 Fed. Reg. 41726 (July 19, 2010); the statutory authority found in 42 U.S.C. § 300gg-13(a)(4) requiring unspecified preventive health services generally, to the ext ent Defendants have used it to mandat e coverage to which Plaintiffs and other employers have religious objections; penalties existing throughout the United States Code for noncompliance with these requirements; and other provisions of PPACA or its implementing regulations that affect exemptions or other aspects of the Mandate.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint

Page 3

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 4 of 37 PageID #: 4

otherwise facilitate the insurance cover age and use of abortifacient drugs, contraception, sterilization and related education and counseling.
8. This Mandate applies to Plaintiffs solely because they wish to operate their business in the United States of America. As have many entities organized by people of faith, the Grote Family has concluded that compliance with Defendants’ Mandate would require them to viol ate their d eeply held religious beliefs as formed by the moral teachings of the Catholic Church.
9. To Grote and its owners, thi s coverage is not morally different than surgical abortion. D efendants have now mandated that the Grotes violate their deeply held religious beliefs by immediately insertin g coverage of abortifacients (and education and counseling in favor of the same) into th e employee health plan. This is something Grote cannot comply with in good conscience.
10. The Mandate illegally and unc onstitutionally coerces the Plaintiffs to violate their sincerely held Catholic beliefs under threat of heavy fines and penalties. The Mandate also forces the Plaintiffs to fund government-dictated speech that is directly at odds with the religiou s ethics derived from their deeply held religious beliefs and the moral teachings of the Catholic Chur ch that they strive to embody in their business. Defendants’ coercion tramples on th e freedom of conscience of Plaintiffs an d millions of other Americans to abide by their religious convictions, to comply with moral imperatives they beli eve are decreed by God Himself throug h His Church, and to contribute through society through business consistent with their religious ethics, deeply held religious beliefs, and the moral teachings of the Catholic Church.
11. Defendants’ refusal to accommodate th e conscience of the Plaintiffs is highly selective. PPACA exempt s a variety of health plans from the Mandate, and upon

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint

Page 4

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 5 of 37 PageID #: 5

information and belief the government has pr ovided thousands of exemptions from the PPACA for various entities such as large cor porations. But Defendants’ Mandate does not exempt Plaintiffs’ plan or those of many other religious Americans.
12. Defendants’ actions violate the P laintiffs’ right freely to exercise religion, protected by the Religious Freedom Resto ration Act and the R eligion Clauses of t he First Amendment to the United States Constitution.
13. Defendants’ actions also violate the Plaintiffs’ right to the freedom of speech, as secured by the Free Speech Clause of the First Amendment to the United States Constitution, and their due process rights secured by the Fifth Amendment to the United States Constitution.
14. Additionally, Defendants violated th e Administrative Procedure Act, 5 U.S.C. § 553, by imposing the Mandate witho ut prior notice or public comment, and for other reasons.
15. Plaintiffs are faced with imminent ha rm due to Defendants’ Mandate. The Mandate by its terms forces Plaintiffs to obtain and p ay for insurance coverage of the objectionable items in their January 1, 2013 plan. Plaintiffs must coordinate and arrange the details for that plan no late r than No vember 15, 2012. Plaintiffs therefore will suffer irreparable harm by or before January 1, 2013, unless the Court enters declaratory and injunctive relief to protect Plaintiffs from Defendants’ deliberate attack on their consciences and religious freedoms resulting from forced compliance with the Mandate.
IDENTIFICATION OF PARTIES 16. Grote Industries, LLC, an Indiana limi ted liability company, is a family business, located in Madison, Indiana, that manufactures vehicle safety systems.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint

Page 5

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 6 of 37 PageID #: 6

17. The managing member of Grote Indust ries, LLC is Grote Industries, Inc., an Indiana corporation. Grote Industries, Inc. is owned and op erated by t he named individual plaintiffs and several other Grote family members. Together they possess fu ll ownership of and management responsibi lity for the busi ness known as Grote Industries.
18. Plaintiff William D. Grote, III is a resi dent of Madison, Indiana. He is Chairman of the Boar d and Chief Executive O fficer of Grote Indu stries, Inc., and owns an equity interest in Grote Industries. William D. Grote is a Catholic and, from the beginning, has sought to run G rote Industries in harmony with the teachings of the Catholic Church.
19. Plaintiff William Dominic Grote, IV is a resident of Madison, Indiana. He is the President and Chief Operating Officer of Grote Industries, Inc. and owns an equity interest in Grote Industries. Dominic Gr ote is a Catholic an d seeks to run Grote Industries in harmony with the teachings of the Catholic Church.
20. Plaintiff Walter F. Grote, Jr. is a resi dent of Naples, Florida. He is the retired Chairman of the Board and a current director of Grote Industries, Inc., and owns an equity interest in Grote Industries. Walter F. Grote, Jr. is a Catholic and, from the beginning, has sought to run G rote Industries in harmony with the teachings of the Catholic Church.
21. Plaintiff Michael R. Grote is a resident of Madison, Indiana. He is the Assistant Treasurer of Grote Industries, Inc. and also owns an equity interest in Grote Industries. Michael Grote is a Catholic an d seeks to run Grote Industries in harmony with the teachings of the Catholic Church.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint

Page 6

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 7 of 37 PageID #: 7

22. Plaintiff W. Frederick Grote, III is a resident of Madi son, Indiana. He is the Secretary of Grote Industries, Inc. and owns an equity interest in Grote I ndustries. Frederick Grote seeks to run Grote Industries in harmony with the teachings of the Catholic Church.
23. Plaintiff John R. Grote is a re sident of Madison, Indiana. He is the Assistant Secretary of Grote Industries, Inc. He also owns an equity interest in Grote Industries. John R. Grote is a Catholic an d seeks to run Grote Industries in harmony with the teachings of the Catholic Church.
24. By virtue of their ownership, director ship and officer positions, the Grote Family is responsible for implementing Gr ote Industries’ compliance with Defendants’ Mandate.
25. Defendants are appointed officials of the United States government and United States Executive Branch agencies responsible for issuing and enforcing the Mandate.
26. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (HHS). In this capacity, she has responsibility for the operation and manage ment of HHS. Sebelius is sued in her official capacity only.
27. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation , administration and enforcem ent of the Mandate.
28. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibili ty for the operation and management of the Department of Labor. Solis is sued in her official capacity only.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint

Page 7

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 8 of 37 PageID #: 8

29. Defendant Department of Labor is an executive ag ency of the United States government and is responsible for the promulgation , administration, and enforcement of the Mandate.
30. Defendant Timothy Geithner is the Se cretary of the Departmen t of the Treasury. In this capacity, he ha s responsibility for the operation and management o f the Department. Geithner is sued in his official capacity only.
31. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation , administration, and enforcement of the Mandate.
JURISDICTION AND VENUE 32. This action arises under the Constituti on and laws of the United States. The Court has sub ject matter jurisdiction pursuant to 28 U. S.C. §§ 1331 & 1361, jurisdiction to render declaratory and injunctive relief u nder 28 U.S.C. §§ 2201 & 2202, 42 U.S.C. § 2000bb-1, 5 U.S.C. § 702, and Fed. R. Civ. P. 65, an d to award reasonable attorney’s fees and costs under the Equal Acce ss to Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988. 33. Venue lies in this district and division pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occur red in this judicial district and division, and the Plaintiffs are located in this district and division.
FACTUAL ALLEGATIONS I. The Grote Family’s Religious Beliefs and Operation of Grote
Industries According to the Same Beliefs. 34. The Grote Family consists entirely of practicing and believing Catholic Christians.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint

Page 8

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 9 of 37 PageID #: 9

35. They strive to follo w Catholic ethi cal beliefs and r eligious and moral teachings throughout their lives, including in their operation of Grote Industries.
36. The Grote Family sincerely believes th at the Catholic faith does not allow them to violate Catholic religious and moral teachings in their decisions operating Grote Industries. They believe that according to the Catholic faith thei r operation of Grote Industries must be guided by ethical social principles and Catholic religious and moral teachings, that the adherence of their business practice according to such Catholic ethics and religious and moral teachings is a genuine calling from God, that their Catholic faith prohibits them to sever their religious beliefs from their daily business practice, and that their Catholic faith requires them to integr ate the gifts of the spi ritual life, the virtues, morals, and ethical social principles of Catholic teaching into their life and work.
37. The Catholic Church teaches that ab ortifacient drugs, contraception and sterilization are intrinsic evils.
38. As a matter of religious faith the Grote Family believes that those Catholic teachings are among the religiou s ethical te achings they must follow throughout their lives including in their business practice.
39. Consequently, the Grote Family believes t hat it would be imm oral and sinful for them to intentionally participate in, pay for, facilitate, or otherwise support abortifacient drugs, c ontraception, sterilization, and related educ ation and counseling, as would be required by the Mandate, through their inclusion in health insurance coverage they offer at Grote Industries.
40. Grote Industries’ “Business Philosophy” defines its philosophy as “ a set of beliefs on which all of its po licies and ac tions are based.” It further describes its

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint

Page 9

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 10 of 37 PageID #: 10

management guidelines as striving to main tain the “highest ethical stand ards” and operating with “personal integrity” as the foundation of success.
41. The Grote Family has, for a substantia l period of time to the present, operated Grote Industries in promotion of Catholic ethical principles in a variety of ways including but not limited to the structuring of their health insurance plan.
42. Under the Grote F amily’s direction, G rote Industries has donated significant amounts t o Catholic parishes, schools, evangelical efforts, and charitable causes averaging approximately $98,000 every year since 2007. This practice has been in place for many years prior to 2007. II. Grote Industries’ Health Insurance Plan
43. As part of fulfilling their organizati onal mission and Catholic beliefs and commitments, Plaintiffs provide generous health insurance for their employees.
44. Grote Industries has 1,148 full-time employees as of September 28, 2012 throughout its various locations.
45. Plaintiffs maintain a self-insured gr oup plan for their employees, in which Grote Industries acts as its own insurer.
46. The plan year for Grote Industries’ se lf-insured plan begins on January 1 of each year, with the next plan year starting on January 1, 2013.
47. Consistent with Plaintiffs’ religi ous commitments, Grote In dustries’ self-insured plan does not cover abortifacient drugs, contraception or sterilization, and it has not done so for its January 1, 2012 – January 1, 2013 plan year.
48. Grote Industries’ self-insured plan is not subject to any Indiana state requirement to cover contraception or abortion.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 10

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 11 of 37 PageID #: 11

49. To implement the plan for the new year beginning January 1, 2013, and/or to make substantial plan changes as a result of the Mandate, Plaintiffs must make insurance coverage d ecisions and logistical arrangements no later than November 15, 2012, in order for the plan to be arranged, reviewed, finalized, and offered to employees for open enrollment in time for the plan year’s January 1 start date. III. The PPACA and Defendants’ Mandate Thereunder
50. Under the PPACA, employers with over 50 full-t ime employees are required to provide a certain minimum level of health insurance to their employees.
51. Nearly all such plan s must incl ude “preventive services,” which must be offered with no cost-sharing by the employee.
52. On February 10, 2012, the Dep artment of Health and Human Services finalized a rule (previously referred to in this Complaint as the Ma ndate) that imposes a definition of preventive services to include all FDA-approved “c ontraceptive” drugs, surgical sterilization, and education and counseling for such services.
53. This final rule was adopted without giving due weight to the tens of thousands of public comments submitted to HHS in opposition to the Mandate.
54. In the category of “FDA-approved contraceptives” included in this Mandate are several drugs or devices that may cause the demise of an already-conceived but not-yet-implanted human e mbryo, such as “emergency contraception” or “Plan B” drugs (the so-called “morning after” pill).
55. The FDA approved in this same c ategory a drug called “ella” (the so-called “week after” pill), whi ch studies show can func tion to kill embryos even after they have implanted in the uterus, by a mechanism similar to the abortion drug RU-486.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 11

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 12 of 37 PageID #: 12

56. The manufacturers of some such drugs, methods and devices

in the

category of “FDA-approved contraceptive meth ods” indicate that they can function to

cause the demise of an early human embryo.

57. The Mandate also requires group health care plans to pay for the provision

of counseling, education, and other inform ation concerning con traception (including

devices and drugs such as Plan B and ella th at cause early abortions or harm to huma n

embryos) and sterilization for all women beneficiaries who are capable of bearing

children.

58. The Mandate applies to the first he alth insurance plan-year beginning

after August 1, 2012.

59. An entity c annot escape the Mandate by self-insuring; Plaintiff s’ plan is

thus subject to the Mandate even though it is self-insured.

60. Thus Plaintiffs are, absent relief from this Court; subject to the Mandate’s

requirement of cover age of the above-desc ribed items starting in the Grote Industries

January 1, 2013 plan.

61. The Mandate makes little or no allo wance for the religious freedom of

entities and individuals, including Plainti ffs, who object to paying for or providing

insurance coverage for such items.

62. An entity cannot freel y avoid the Mand ate by simply refusing to provide

health insurance to its employees, because the PPACA imposes m onetary penalties on

entities that would so refuse.

63. The exact magnitude of the se penalties may vary according to the

complicated provisions of the PPACA, b ut the fine is approximately $2,000 per

employee per year.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 12

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 13 of 37 PageID #: 13

64. PPACA also imposes monetary penalt ies if Grote Industries were to

continue to offer its self-insured plan but continued omitting abortifacien

ts,

contraceptives and sterilization.

65. The exact magnitude of the se penalties may vary according to the

complicated provisions of the PPACA, but t he fine is approximately $100 per day per

employee, with minimum amounts applying in different circumstances.

66. If Plaintiffs do not submit to the Mandate they also trigger a range of

enforcement mechanisms that exist under ER ISA, including but not limited to civil

actions by the Secretary of Labor or by plan participants and beneficiaries, which would

include but not be limited to relief in th e form of judicial or ders mandating that

Plaintiffs violate their sincerely held religi ous beliefs and provide coverage f or items to

which they religiously object.

67. The Mandate applies not only to spon sors of group health plans like

Plaintiffs, but also to issuers of insuranc e. Accordingly, Plaintiffs cannot avoid the

Mandate by shoppi ng for an insurance plan that accommodates their right o f

conscience, because the Administration has intentionally foreclosed that possibility.

68. The Mandate offers the possibi lity of a narrow exemption to religious

employers, but only if they meet all of the following requirements:

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

(2) “The organization primarily empl oys persons who share the religious tenets of the organization”;

(3) “The o rganization serves primar ily persons who share the religious tenets of the organization”; and

(4) The organization is a church, an integrated auxiliary of a church, a convention or association of ch urches, or is an exclu sively religious

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 13

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 14 of 37 PageID #: 14

activity of a religious order, unde r Internal Revenue Code 6033(a)(1) and (a)(3)(A). 69. The Mandate imposes no constraint on the government’s discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate’s definition of “religious employers.” 70. Plaintiffs are not “r eligious” enough under this d efinition in several respects, including but not limited to beca use they have pur poses other than the “inculcation of religious values, ” they do not primarily hire or serve Catholics, and because Grote Industries is not a church, in tegrated auxiliary of a particular church, convention or association of a church, or the ex clusively religious activities of a religious order. 71. The Mandate fails to protect the statutory and consti tutional conscience rights of religious Americans like Plaintiffs even though those ri ghts were repeatedly raised in the public comments. 72. The Mandate requ ires that Plaintiffs provide coverag e for abort ifacient methods, contraception, sterilization and ed ucation and counseling related to the same, against their conscien ce and in violation of th eir religious beliefs, in a manner that i s contrary to law. 73. The Mandate constit utes government-imposed coercion on Plaintiffs to change or violate their sincerely held religious beliefs. 74. The Mandate exposes Plaintiffs to substantial fines for refusal to change or violate their religious beliefs. 75. The Mandate will impose a burden on the Plaintiffs’ employee recruitment and retention efforts by creating uncertainty as to whether or on what terms they will be

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 14

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 15 of 37 PageID #: 15

able to offer health i nsurance beyond the Mandate’s effect or will suffe r penalties therefrom.
76. The Mandate will place Plaintiffs at a competitive disadvantage in their efforts to recruit and retain employees.
77. Plaintiffs have a sincere conscientious religious objection to providing coverage for abortifacients, contraception, sterilization and related education and counseling.
78. The Mandate does not apply equally to all religious adherents or groups. 79. PPACA and the Mandate are not generally applicable because they provide for numerous exemptions from their rules. 80. For instance, the Mandate does not apply to members of a “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds. See 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii). Plaintiffs do not meet this exemption. 81. In addition, as described above, the Mandate exempts certain churches narrowly considered to be religious employers. 82. Furthermore, the PPACA creates a system of individualized exemptions because under the PPACA’s authorization the federal government has granted discretionary compliance waivers to a variety of businesses for purely secular reasons. 83. The Mandate does not apply to employers with preexisting plans that are “grandfathered.” 84. Grote Industries’ plan is not grandfat hered under PPACA, nor will its plan year that starts on January 1, 2013 have grandfathered status.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 15

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 16 of 37 PageID #: 16

85. The Mandate does not apply through the employer mandate to employers

having fewer than 50 full-time employees.

86. President Obama held a press conferenc e on February 10, 2012, and later

(through Defendants) issued an “Advanced Notice of Pr

oposed Rulemaking”

(“ANPRM”) on March 21, 2012 (77 Fed.

Reg. 16501–08), claiming to offer a

“compromise” under which some religious non-profit organizations not meeting the

above definition would still have to compl y with the Mandate, but by means of the

employer’s insurer offering the employer’s employees the same coverage for “free.”

87. This “compromise” is not helpful to Plaintiffs because, among other

reasons, Grote Industries is not a non-prof it entity, and Grote Industries’ plan is

self-insured.

88. The ANPRM is neither a rule, a propos ed rule, nor the specification of

what a rule proposed in the future would ac tually contain. It in no way changes or

alters the final status of the February 15, 2012 Mandate. It does not even create a legal

requirement that Defendants change the Mandate at some time in the future.

89. On February 10, 2012 a document was also issued from the Center for

Consumer Information and Insurance Oversight (CCIIO), Centers for Medicare &

Medicaid Services (CMS), of HHS, entitle d “Guidance on the Temporary Enforcement

Safe Harbor for Certain Employe rs, Group Health Plans and Group Health Insurance

Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost

Sharing Under Section 2713 of the Public He alth Service Act, Section 715(a)(1) of the

Employee Retirement Income S ecurity Act, and Sect ion 9815(a)(1) of the Internal

Revenue Code.”

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 16

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 17 of 37 PageID #: 17

90. Under this “Guidance,” an organization that truthfully declares “I certify

that the organization is organized and operat ed as a non-profit entity; and that, at any

point from February 10, 2012 on ward, contraceptive coverage has not been provided b y

the plan, consistent with any applicable Stat e law, because of the religious beliefs of the

organization,” and that provides a specifie d notice to plan participants, wi ll not “b e

subject to any enforcement action by the Departments for failing to cover recommended

contraceptive services without co st sharing in non-exempted, non-grandfathered group

health plans established or maintained by an organization, including a group or

association of employers within the meaning of section 3(5) of ERISA, (and any group

health insurance coverage provided in connection with such plans),” until “the first plan

year that begins on or after August 1, 2013.”

91. The “Guidance” categorically disqualifies Plaintiffs from making use of this

“extra year” because, among other reasons, Grote Industries is not a non-profit entity.

92. Therefore while the president’s “com promise” and guidance p urport to

accommodate the religious beliefs of even more groups beyond the Mandate’s initial

exemption for churches, none of these measur es will stop the Mandate from imposing

its requirements on Plaintiffs’ plan year beginning January 1, 2013.

93. Unless relief issues from this Court, Plaintiffs are forced to take the

Mandate into accou nt now and in the f uture, as it plans expenditures, including

employee compensation and benefits packages, for the January 1, 2013 plan year and for

the next several years. It will have to

negotiate contracts for new and existing

employees and these contracts will extend into the time frame when the Mandate begins

to apply to its health insurance plans.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 17

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 18 of 37 PageID #: 18

94. The Mandate will have a profound and adverse effect on Plaintiffs and how they negotiate contracts and compensate their employees.
95. The Mandate will make it difficult for Plaintiffs to attract quality employees because of uncertainty about health insurance benefits.
96. Any alleged interest Defendants ha ve in providing free FDA-approved contraception, abortifacients and sterilizat ion without cost-shari ng could be advanced through other, more narrowly tailored mech anisms that do not burden the religious beliefs of Plaintiffs and do not require them to provide or facilitate coverage of such items through their health plan.
97. Without injunctive and declaratory relief as requested herein, including preliminary injunctive relief issued on or be fore January 1, 2013, Plaintiffs are suffering and will continue to suffer irreparable harm.
98. Plaintiffs have no adequate remedy at law. 99. Grote Industries’ self-insured plan covers pregnancy-related expenses, such as: prenatal and postnatal care; hospit al or birthing center room and board; obstetrical fees for routine prenatal care; vaginal delivery or cesarean section; diagnostic testing when clinical eligibility for coverage is met; abdominal operation for intrauterine pregnancy or miscarriage; outpatient birthi ng centers; midwives. The plan does not consider pregnancy an excluded pre-existing condition. 100. Grote Industries’ self-insured plan provi des a maternity management service, which provid es prenatal education and high-risk pregnancy identification to help mothers carry their babies to term. This program increases the number o f healthy, full term deliveries and decreases the likelih ood of complications requiring a long ter m hospital stay for t he mother or baby. Pr ogram members are contacted via telephone

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 18

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 19 of 37 PageID #: 19

upon entrance into the program, at whi ch time future calls are also sc heduled. A comprehensive assessment to determine the member’s risk level and educational need is performed. To increase participation, Grote Industries pays an annual fee, so that expectant mothers can participate for free.
101. Grote Industries has a wellness program f or employees which program includes promoting the health of women during and after pregnancy.
102. The lowest paid employee at Grote In dustries that is enrolled in the self-insured plan earns $20,696 per year. Only four (4) such e mployees earn $22,070 or less. The median wage of health plan participants is $30,493 and their average wage is $46,487 (these figures are calculated with out including the wages of Grote Industries’ owners).
103. Grote Industries’ self-insured plan (Plan 1)—is not grandfathered under PPACA because between the 201 0 plan year and the 2011 plan year, the prescription drug benefits co-pays increased as follows: the non-formulary copay increased from $35 to $45 (threshold for loss of grandfathered status was $41.14), the mail-order brand co-pay increased from $2 2 to $35 (threshold for loss of grandfathered status wa s $27.12), and the mail-order non-formulary co-pay increased from $42 to $75 (threshold for loss of grandfathered status was $49.37).
104. Grote Industries’ self- insured plan (Plan 2)—is not grandfathered under PPACA because between the 201 0 plan year and the 2011 plan year, the prescription drug benefits co-pays increased as follows: the non-formulary copay increased from $35 to $45 (threshold for loss of grandfathered status was $41.14), the mail-order brand co-pay increased from $2 2 to $35 (threshold for loss of grandfathered status wa s $27.12), and the mail-order non-formulary co-pay increased from $42 to $75 (threshold

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 19

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 20 of 37 PageID #: 20

for loss of grandfathered status was $49. 37). In addition, th ere was a twenty-five percent (25%) increase in the de ductible (threshold for loss of grandfathered status was 17.56%) and the requ ired employee contribution per pay period increased on a scale from $7.74 to $21.60 for “employee only ” coverage and from $19.24 to $46.75 for “employee and family” coverage each pay period.
105. Grote Industries’ self-insured plan is not grandfathered under PPACA because for the January 1, 2011 plan year, Gr ote Industries did not provide notification to plan participants that its plan was con sidered grandfathered (because the plan wa s not considered grandfathered).
106. It would significantly injure Plaintiffs and their employees to require them to wait to k now whether their January 1, 20 13 health plan will cover the item s required by the Mandate.
107. Plaintiffs offer their employees a n open enrollment period on the January 1 plan year starting on December 1, 2012.
108. Employees cannot make an inf ormed decision on that open en rollment period without knowing the final terms of th e plan, including whether it will cover the Mandated items.
109. The open enrollment period cannot start without finalizing a contract with a stop-loss carrier, and also a third party ad ministrator, for the plan in advance of December 1, 2012.
110. To finalize a contract with a stop-lo ss carrier, Plaintiffs must k now the complete and final details of the plan’s terms including its coverage, submit those details to their br oker who submits the m for bids to stop-loss carriers, review th e bids and

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 20

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 21 of 37 PageID #: 21

negotiate with carriers who offe r competitive bids, reach an agreement with a carrier , and draft, review, finalize and execute a contract with the carrier.
111. The activities involved in securing stop-loss coverage and thir d-party administrator services typically take up to thirty (30) days to complete in time for the December 1, 2012 open enrollment period.
112. Before the plan’s terms are finalized and submitted for bids to stop-loss carriers, the Plaintiffs must decide what th ose terms will be, what will be covered in the plan, what employee contributions will be to the plan, and what the terms of Grote Industries’ related wellness program for em ployees will be, through which employees receive credits towards their plan.
113. Plaintiffs’ decision on the plan’s te rms must be ma de based on knowing what items the plan will or will not cover, and what levels of employee contributions will be needed to meet Grote Industries’ budget based on what the plan covers.
114. If Plaintiffs were forced to add n o-cost-sharing surgical sterilizations and implantable “contraceptive” methods to their plan as required b y the Mandate, which cost hundreds or thousands of dollars, as well as all FDA-approved “contraceptives” including those that act to destroy early e mbryos, as well as patient edu cation and counseling in facil itation of th e aforementioned, all of which are required by the Mandate, Plaintffs would have take that incl usion into account at the time they decide what coverages and employee-contributions the budget of Grote Industries can afford. This decision must occur before the plan is submitted for bidding to stop-loss providers.
115. Adding the Mandated items will require Grot e Industries to either remove coverage of other services included in the plan, or increase employee contributions.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 21

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 22 of 37 PageID #: 22

116. Therefore if Plaintiffs are not afforded prompt injunctive relief against the Mandate, they and their employees face imminent and irreparable injury.
FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 117. Plaintiffs reallege all matters set fo rth in the preceding paragraphs and incorporate them herein by reference. 118. Plaintiffs’ sincerely held religio us beliefs prohibit them from providing coverage for abortifacients, con traception, sterilization, and related edu cation and counseling in their employee health plan. 119. When Plaintiffs comply with Cathol ic ethical and moral teachings on abortifacients, contraception, an d sterilization and with their si ncerely held religious beliefs, they exercise religion wit hin the meaning of the Religious Freedom Restoration Act. 120. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise and coerces them to change or violate their sincerely held religious beliefs. 121. The Mandate chills Plaintiffs’ religious exercise wit hin the meaning o f RFRA. 122. The Mandate exposes Plaintiffs to substantial fines and/or financial burdens for their religious exercise. 123. The Mandate exposes Plaintiffs to su bstantial competitive disadvantages because of uncertainties about their health insurance benefits caused by the Mandate. 124. The Mandate furthers no compelling governmental interest and is no t narrowly tailored to any compelling governmental interest.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 22

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 23 of 37 PageID #: 23

125. The Mandate is not t he least restrict ive means of furthering Defendants’ stated interests.
126. The Mandate violates RFRA. WHEREFORE, the Plaintiffs pray for the relief set forth below.
SECOND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment to the United States Constitution 127. Plaintiffs reallege all matters set fo rth in the preceding paragraphs and incorporate them herein by reference. 128. Plaintiffs’ sincerely held religio us beliefs prohibit them from providing coverage for abortifacients, con traception, sterilization, and related edu cation and counseling in their employee health plan. 129. When Plaintiffs comply with Cathol ic ethical and moral teachings on abortifacients, contraception, an d sterilization and with their si ncerely held religious beliefs, they exercise religion within the meaning of the Free Exercise Clause. 130. The Mandate is not neutral and is not generally applicable. 131. Defendants have created categorica l exemptions and individ ualized exemptions to the Mandate. 132. The Mandate furthers no compelling governmental interest. 133. The Mandate is not t he least restrict ive means of furthering Defendants’ stated interests. 134. The Mandate coerc es Plaintiffs to chan ge or violate their sincer ely held religious beliefs. 135. The Mandate chills Plaintiffs’ religious exercise.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 23

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 24 of 37 PageID #: 24
136. The Mandate exposes Plaintiffs to substantial fines and/or financial burdens for their religious exercise.
137. The Mandate exposes Plaintiffs to su bstantial competitive disadvantages because of uncertainties about its health insurance benefits caused by the Mandate.
138. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise. 139. The Mandate is not narrowly t ailored to any compe lling governmental interest. 140. By design, Defendan ts framed the Mandate to apply to some religious Americans but not to others, resulting in discrimination among religions. 141. Defendants have creat ed exemptions to the Mandate for some religious believers but not others based on characteri stics of their beliefs and their religious exercise. 142. Defendants designed t he Mandate, the relig ious exemption thereto, and the “compromise” and guidance allowances th ereto, in a way that makes it impossible for Plaintiffs and other similar religious Ame ricans to comply with their sincerely held religious beliefs. 143. Defendants promulgated both the Mandate and the religious exemption/allowances with the purpose and in tent to suppress the religiou s exercise of Plaintiffs and others. 144. The Mandate violates Plaintiffs’ righ ts secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution. WHEREFORE, the Plaintiffs pray for the relief set forth below.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 24

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 25 of 37 PageID #: 25

THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution 145. Plaintiffs reallege all matters set fo rth in the preceding paragraphs and incorporate them herein by reference. 146. The First Amendment’s Establishment Clause prohibits the establishment of any religion and/or excessive government entanglement with religion. 147. To determine whether religiou s persons or entities like Plaintiffs are required to comply with the Mandate, are required to continue to comply with the Mandate, are eligibl e for an exemption or other accommodations, or continue to be eligible for the same, Defendan ts must examine the religious beliefs and doctrinal teachings of persons or entities like Plaintiffs. 148. Obtaining sufficient information for the Defendants to analyze the content of Plaintiffs’ sincerely held r eligious beliefs requires ongoing, comprehensive government surveillance that impermissibly entangles Defendants with religion. 149. The Mandate discrim inates among re ligions and among denominations, favoring some over others, and exhibits hostility to religious beliefs. 150. The Mandate adopts a particular theolo gical view of what is acceptable moral complicity in provision of abortifacien t, contraceptive and sterilizatio n coverage and imposes it upon all religi onists who must either conform their consciences or suffer penalty. 151. The Mandate violates Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution. WHEREFORE, the Plaintiffs pray for the relief set forth below.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 25

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 26 of 37 PageID #: 26

FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment to the United States Constitution 152. Plaintiffs reallege all matters set fo rth in the preceding paragraphs and incorporate them herein by reference. 153. Defendants’ requirement of provision of insurance cov erage for education and counseling regarding contraception and abortion-causing drugs forces Plaintiffs to speak in a manner contrary to their religious beliefs. 154. Defendants have no narrowly tailored compelling interest to justify this compelled speech. 155. The Mandate violates Plaintiffs’ rights secured to them by the Free Speech Clause of the First Amendment of the United States Constitution. WHEREFORE, the Plaintiffs pray for the relief set forth below.
FIFTH CLAIM FOR RELIEF Violation of the Due Process Clause of the Fifth Amendment to the United States Constitution 156. Plaintiffs reallege all matters set fo rth in the preceding paragraphs and incorporate them herein by reference. 157. Because the Mandate sweepingly infringes upon religious exer cise and speech rights that are constitutionally pro tected, it is unconstitutionally vague and overbroad in violation of the due process rights of Plaintiffs and other parties not before the Court. 158. Persons of common intelligence must necessarily guess at t he meaning, scope, and application of the Mandate and its exemptions. 159. This Mandate lends itself to discriminator y enforcement by government officials in an arbitrary and capricious manner.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 26

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 27 of 37 PageID #: 27

160. The Mandate vests Defendants with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations, in crafting “religiou s employer” exemptions and changing the sa me, in crafting and modifying further “accommodations” and additional definitions of entities that qualify for the same, and in enforcing the Mandate and craf ting rules regarding the same such as through its repeatedly issued enforcement “Guidances.”
161. This Mandate is an unconstitutional violation of Plaintiffs’ due process rights under the Fifth Amendment to the United States Constitution.
WHEREFORE, the Plaintiffs pray for the relief set forth below. SIXTH CLAIM FOR RELIEF
Violation of the Administrative Procedure Act 162. Plaintiffs reallege all matters set fo rth in the preceding paragraphs and incorporate them herein by reference. 163. Because they did not give proper notice and an opportunity for public comment, Defendants did not take into accoun t the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 164. Defendants did not consider or respond to the voluminous comments the y received in opposition to the interim final rule. 165. Defendants conceded upon issuance of their interim final Mandate in August 2011 that they did not intend to gi ve meaningful consideration to subsequent comments due to the alleged need to finali ze the Mandate without subsequent change from the form it took in August 2011. 166. Defendants actually refused to give meaningful consideration to comments when it finalized its Mandate in February 2012 without change.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 27

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 28 of 37 PageID #: 28

167. Defendants further conceded in its March 2012 ANPRM that it should

have given meaningful consideration to and not finalized its Mandate without change in

February 2012, and that the Mandate need ed to be amended according t o concerns

raised in those comments.

168. PPACA requires that the Mandate not be imposed until a year after it is

issued in final unchanged form.

169. Yet despite Defendan ts’ expressed intent in March 2012 to am end the

Mandate in the future, which implicitly concede d that it should no t have been finalized

without change in February 2012, Defendan ts have not refrained from imposing the

Mandate against Grote Industries and others now, as if the August 2011 int erim final

rule meaningfully considered public comments.

170. As a result of this violation, Grot e Industries has been prejudiced by being

threatened by and subject to the Mandate’s penalties now, instead of in its first plan year

that commences a year after the Mandate’s i ssuance with changes that stil l have not

occurred.

171. Therefore, Defendants have taken agency action not in accordan ce with

procedures required by law, and Plaintiffs ar e entitled to relief pursuant to 5 U.S.C.

§ 706(2)(D).

172. In promulgating the Mandate, Defendants failed to consi

der the

constitutional and statutory implications of the Ma ndate on Plaintiffs and simila r

persons.

173. Defendants’ explanation (and lack ther eof) for its decision not to exempt

Plaintiffs and similar religious organizat ions from the Mandate runs counter to the

evidence submitted by religious Americans during the comment period.

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 28

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 29 of 37 PageID #: 29

174. Thus, Defendants’ issuance of t he Mandate was arbit rary and c apricious within the meaning of 5 U.S.C. § 706(2)(A) because the Mandate fails to consider the full extent of its implications and it does not take into consideration the evidence against it.
175. As set forth above, the Mandate viol ates RFRA and the First and Fifth Amendments.
176. The Mandate is also contrary to the provisions of the PPACA whi ch states that “nothing in this title”—i.e., title I of the Act, which includes the provision dealing with “preventive services”—“sha ll be construed to require a qu alified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” Section 1303(b)(1)(A). Some drugs included as “FDA-approved contraceptives” under the Mand ate cause ab ortions by causing the demise of huma n embryos before and/or after implantation.
177. The Mandate is also c ontrary to the provisions of the W eldon 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 (Sept. 30, 2008), which provides that “[n]one of the funds made avai lable in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Feder al agency or program . . . if such agency, program, or g overnment 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.”
178. The Mandate also vi olates the provis ions of the Chu rch Amendment, 42 U.S.C. § 300a-7(d), which provides that “No individual shall be required to perform or

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 29

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 30 of 37 PageID #: 30

assist in the performance of any part of a health service progr am or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”
179. The Mandate is contrary to existing law and is in violation of the APA under 5 U.S.C. § 706(2)(A)f.
WHEREFORE, the Plaintiffs pray for the relief set forth below. PRAYER FOR RELIEF
Plaintiffs respectfully request the Court enter the following relief: A. A judgment declaring the Mandate and its application to Plaintiffs and others similarly situated but no t before the Court to be an unconstitutional violation of their rights protected by RFRA, the Fre e Exercise, Establishment, and Free Speech Clauses of the First Amendment to the Un ited States Constitution, the Due Process Clause of the Fifth Amend ment to the United Stat es Constitution, and the Administrative Procedure Act, and therefore invalid in any way applicable to them; B. A preliminary and a permanent inju nction prohibiting Defendants fro m applying the Mandate to Plaintiffs and others similarly situated but not before the Court in a way t hat substantially burdens the r eligious belief of Plaintiffs or a ny person in violation of RFRA and the Constitution, and prohibiting Defendants from continuing to illegally discriminate against Plaintiffs an d others not before the Court by requiring them to provide health insurance coverage for abortifacients, contraception, sterilization and related education and counseling to employees; C. Award Plaintiffs court costs and reas onable attorney's fees, as provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1988); and

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 30

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 31 of 37 PageID #: 31

D. Grant such other and further relief as to which the Plaintiffs may b

e

entitled.

Plaintiffs demand a jury on all issues so triable.

Respectfully submitted this 29th day of October, 2012.

Attorneys for Plaintiffs:

s/Michael J. Cork

__________

______________________

Michael A. Wilkins

Michael J. Cork

Of Counsel

Bamberger Foreman Oswald & Hahn, LLP

Broyles Kight & Ricafort, PC

201 N. Illinois St., Suite 1225

8250 Haverstick Road, Suite 100

Indianapolis, IN 46204-4219

Indianapolis, IN 46240

(317) 464-1594

317-428-4527 Direct

(317) 464-1592 (Fax)

317-571-3610 Fax

mcork@bamberger.com

mwilkins@bkrlaw.com

Bryan Beauman (Admission pro hac vice motion forthcoming) Alliance Defending Freedom P.O. Box 779 Paris, KY 40362-0779 (859) 340-1127 bbeauman@alliancedefendingfreedom.com

Matthew S. Bowman (Admission pro hac vice motion forthcoming) Alliance Defending Freedom 801 G Street NW, Suite 509 Washington, D.C. 20001 (202) 393-8690 (202) 237-3622 (facsimile) mbowman@alliancedefendingfreedom.org

Grote Industries, LLC, et al. v. Kathleen Sebelius, et al.

Verified Complaint Page 31

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 32 of 37 PageID #: 32
*In compliance with S.D.Ind.L.R. 5.11, the verifications bear original handwritten signatures which have been scanned into PDF for electronic filing.

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 33 of 37 PageID #: 33

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 34 of 37 PageID #: 34

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 35 of 37 PageID #: 35

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 36 of 37 PageID #: 36

Case 4:12-cv-00134-SEB-DML Document 1 Filed 10/29/12 Page 37 of 37 PageID #: 37

 
 Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 1 of 58 PageID #: 281

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

GROTE INDUSTRIES, LLC, an Indiana limited liability company, GROTE INDUSTRIES, INC., an Indiana corporation, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, WALTER F. GROTE, JR., MICHAEL R. GROTE, W. FREDERICK GROTE, III, and JOHN R. GROTE,

Plaintiffs,

v.

Civil Action No. 4:12-cv-134-SEB-DML

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

Defendants

.

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 2 of 58 PageID #: 282
TABLE OF CONTENTS
STATEMENT OF ISSUES .............................................................................................. iii TABLE OF AUTHORITIES..............................................................................................iv INTRODUCTION............................................................................................................. 1 FACTUAL BACKGROUND ............................................................................................. 2 ARGUMENT.................................................................................................................... 7
I. Grote is likely to succeed on the merits................................................................... 8 A. The Mandate violates the Religious Freedom Restoration Act. ............................ 8 1) Grote’s abstention from providing contraception and abortion-inducing drugs in its employee health care coverage qualifies as “religious exercise” under RFRA..................................................................................... 8
a. Grote Industries can exercise religious beliefs. ...................................... 10 b. Grote’s religious owners can exercise religion under RFRA................... 14
2) The Mandate imposes a substantial burden on the religious beliefs of Grote Industries and its owners..................................................................... 14
3) The Mandate cannot satisfy strict scrutiny. ................................................... 20
a. Defendants cannot identify a compelling interest. .................................. 22 b.There is no “business exception” to RFRA’s compelling interest test. ..... 26 c. The government cannot meet its evidentiary burden. ............................. 29 d. Defendants cannot show the Mandate is the least restrictive means of
furthering their interests. ..................................................................... 32 B. The Mandate violates the Free Exercise Clause. ............................................... 35 C. The Mandate violates the Establishment Clause................................................ 38 D. The Mandate violates the Free Speech Clause.................................................. 39 E. The Mandate violates the Due Process Clause.................................................. 40
i

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 3 of 58 PageID #: 283 F. The Mandate violates the Administrative Procedure Act. ................................... 41
II. Grote will suffer irreparable harm in the absence of preliminary relief................... 43 III. The balance of equities tips in Grote’s favor. ........................................................ 45 IV. An injunction is in the public interest. .................................................................... 46 CONCLUSION .............................................................................................................. 46
ii

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 4 of 58 PageID #: 284

STATEMENT OF ISSUES

Can the federal government force Plainti ffs to provide insuranc e coverage for

their employees tha t include contraception, sterilization, and abortifacients, an d

education and couns eling related thereto, despite the valid religious objections of the

Plaintiffs to such services?

Does the Defendants ’ mandate substantially burden Plaintiffs’ religious beliefs

and fail to satisfy the strict scrutiny requi red under the Religious Freedom Restoration

Act, the First and Fifth Amendments to the

United States Constitution, or the

Administrative Procedure Act where De fendants, among other reasons: 1) do not

exempt Plaintiffs from the requirement but have exempted tens of millions of other

Americans; 2) stayed enforcement agains t many others; and 3) could pursue, and

already do pursue, the less rest rictive means of directly delivering the drug items at

issue here?

iii

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 5 of 58 PageID #: 285
Table of Authorities
Cases Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977).......................................................... 39 ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012) .............................................................. 44 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ................................................... 13 Anderson v. Celebrezze, 460 U.S. 780 (1983) .............................................................. 32 Ashcroft v. A.C.L.U., 542 U.S. 656 (2004)....................................................................... 8 Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004) ............................................. 37 Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (June 27, 2011) ............... 21, 25, 29, 30 Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) ................................................... 21 Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, 556 F.3d 1021
(9th Cir. 2009)............................................................................................................ 37 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.520 (1993) .... passim Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .............................. 43 Citizens United v. Federal Election Comm’n, 130 S. Ct. 876 (2010) ............................. 13 Colo. Christian U. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) ...................................... 38 Commack Self-Service Kosher Meats, Inc. v. Hooker, 800 F. Supp. 2d 405 (E.D.N.Y.
2011) ......................................................................................................................... 11 DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir. 1999)........................................... 13 EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) .........................11, 14 Elrod v. Burns, 427 U.S. 347 (1976).............................................................................. 43 Employment Division v. Smith, 494 U.S. 872 (1990)....................................................... 9 Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011)...................................................... 7
iv

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 6 of 58 PageID #: 286
F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012) .................................... 40 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ...................................... 12 Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,170 F.3d 359 (3d Cir.
1999) ................................................................................................................... 11, 37 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ........
............................................................................................................................ passim Grand Canyon Air Tour Coalition v. F.A.A., 154 F.3d 455 (D.C. Cir. 1998)................... 42 Grayson v. Schuler, 666 F.3d 450 (7th Cir. 2012) ............................................................ 9 Grutter v. Bollinger, 539 U.S. 306 (2003). ..................................................................... 32 Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557 (1995)... 39 Jasniowski v. Rushing, 678 N.E.2d 743 (1997) ............................................................. 20 Johnson v. Cincinnati, 310 F.3d 484 (2002) .................................................................. 32 Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) ................................................................ 44 Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ....................................................... 44 Knox v. Service Employees Intern. Union, 132 S. Ct. 2277 (June 21, 2012) ................ 40 Larson v. Valente, 456 U.S. 228 (1982) ........................................................................ 38 Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985) ............................... 13 Mack v. O'Leary, 80 F.3d 1175 (7th Cir.1996)........................................................... 9, 14 Maruani v. AER Services, Inc., 2006 WL 2666302 (D. Minn. 2006) .............................. 11 McClure v. Sports and Health Club, Inc., 370 N.W.2d 844 (Minn. 1985)........... 10, 14, 20 McLouth Steel Products Corporation v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988) ........ 42 Mitchell County v. Zimmerman, 810 N.W.2d 1 (Iowa 2012) .......................................... 37 Monell v. Dept. of Social Services, 436 U.S. 658 (1978)............................................... 13
v

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 7 of 58 PageID #: 287
Morr-Fitz, Inc. et al. v. Blagojevich, No. 2005-CH-000495, slip op. at 6–7, 2011 WL 1338081 (Ill. Cir. Ct. 7th, Apr. 5, 2011)................................................................11, 20
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .................................................. 14 Newland v. Sebelius, 2012 WL 3069154 (D. Colo. July 27, 2012) ......................... passim Northwest Tissue Center v. Shalala, 1 F.3d 522, 531 (7th Cir. 1993) ............................ 42 O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir.
2004) ......................................................................................................................... 46 O’Brien v. U.S. Department of Health & Human Srvs., 2012 WL 4481208 (E.D. Mo.
2012) ................................................................................................................... 18, 19 Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295
(11th Cir. 2006).......................................................................................................... 13 Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996) ................................................. 35 Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988) . 34 Roberts v. Bradfield, 12 App. D.C. 453 (D.C. Cir. 1898) ............................................... 11 Sherbert v. Verner, 374 U.S. 398 (1963) ................................................... 8, 9, 11, 15, 28 Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) ...................................................................................................................................... 38 Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ................................. 11, 14, 20 Stuller, Inc. v. Steak N Shake Enterprises, 2012 U.S. App. Lexis 17921 (7th Cir. Aug. 24,
2012) ........................................................................................................................... 7 Thomas v. Collins, 323 U.S. 516 (1945)........................................................................ 20 Thomas v. Review Bd., 450 U.S. 707 (1981) .............................. 9, 11, 14, 15, 16, 18, 19 United States v. Amedy, 24 U.S. 392, 11 Wheat. 392 (1826) ....................................... 13
vi

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 8 of 58 PageID #: 288
United States v. Lee, 455 U.S. 252 (1982) ..................................... 11, 18, 19, 20, 26, 27, 28 United States v. Philadelphia Yearly Meeting of the Religious Soc’y of Friends, 322 F.
Supp. 2d 603 (E.D. Pa. 2004) ................................................................................... 10 United States v. United Foods, 533 U.S. 405 (2001) .................................................... 39 United States v. Williams, 553 U.S. 285 (2008) ............................................................ 40 W. Presbyterian Church v. Bd. of Zoning Adjustment of Dist. of Columbia, 849 F. Supp.
77 (D.D.C. 1994)........................................................................................................ 44 W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ............................................ 39 Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990) ...................................................... 38, 39 Wisconsin v. Yoder, 406 U.S. 205 (1972) ....................................................... 8, 9, 16, 28 Wooley v. Maynard, 430 U.S. 705 (1977) ..................................................................... 39
Statutes Administrative Procedure Act, 5 U.S.C. § 701................................................................. 1 5 U.S.C. § 706(2)(A) & (B) ............................................................................................ 43 5 U.S.C. § 706(2)(D) ..................................................................................................... 41 5 U.S.C. § 553(b) & (c).................................................................................................. 42 26 U.S.C. § 4980D(a),(b) .............................................................................................. 15 26 U.S.C. § 4980H ........................................................................................................ 15 26 U.S.C. § 4980H(c)(2)................................................................................................ 27 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii) .......................................................................... 22 29 U.S.C. § 1132(a) ...................................................................................................... 15 42 U.S.C. § 300gg......................................................................................................... 37
vii

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 9 of 58 PageID #: 289
42 U.S.C. § 300gg-13.............................................................................................. 40, 41 42 U.S.C. § 300gg-13(a)(4) ....................................................................................... 5, 33 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb ........................... 1, 8, 9, 10, 28 42 U.S.C. § 2000bb(b)(1) ................................................................................................ 9 42 U.S.C. 2000bb-1....................................................................................................... 32 42 U.S.C. § 2000bb-2(4) ........................................................................................... 8, 10 Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc ............. 8, 10 42 U.S.C. § 2000cc-5(7)(A) ....................................................................................... 8, 10 42 U.S.C. § 2000e–1(a) ................................................................................................ 12 42 U.S.C. § 18023......................................................................................................... 12
Regulations 45 C.F.R. § 147.130(a)(iv)(B)(1)–(4) ............................................................................. 36 45 C.F.R. § 147.130 ...................................................................................................... 37 75 Fed. Reg. at 41726............................................................................................... 5, 42 75 Fed. Reg. 34,538, at 34,540, 34,558, 34,562, & 34,566........................................... 23 76 Fed. Reg. 46621–26................................................................................................. 42 76 Fed. Reg. at 46623................................................................................. 15, 22, 37, 40 76 Fed. Reg. at 46626............................................................................................. 22, 26 77 Fed Reg. 16501, 16503................................................................................ 17, 37, 41 77 Fed. Reg. 8725–30................................................................................................... 42
Other Authorities Douglas Laycock and Oliver S. Thomas, “Interpreting the Religious Freedom
Restoration Act,” 73 TEX. L. REV. 209, 224 (1994) ............................................... 29, 34 viii

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 10 of 58 PageID #: 290 Facts on Publicly Funded Contraceptive Services in the United States ........................ 33 U.S. Const., amend. V............................................................................................. 35, 36
ix

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 11 of 58 PageID #: 291
INTRODUCTION This action arises because the federal government has recently determined that certain employers must prov ide insurance coverage for their employees t hat include contraception, sterilization, and abortifacie nts, despite the valid religious objections of the employers to such services. Grote Industries is a family owned business whos e owners object to providing such coverage, because the coverage requires them to provide services that violate their sincerely held religious be liefs. As Catholics, the Grote family believes that it would be s inful and immoral for them to provide insuranc e coverage for abortifacient drugs, contracepti on, or sterilization to their employees. Defendants have already been the subject of a prel iminary injunction against this mandate, so as to pr otect a com pany owned by religious believers. See Newland v. Sebelius, 2012 WL 3069154 (D. Colo. July 27, 2012). Defendants’ mandate of insurance cove rage subjects Grote to draconian penalties, including lawsuits by Defendant Secretary of Labor as well as fines and penalties accruing in t he millions. Forcing Gr ote to choose between its faith and s uch penalties is a blatant violatio n of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (RFRA), the First and Fifth Ame ndments to the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. Defendants cannot satisfy the stri ct scrutiny requir ed under RF RA and these laws. Defendants “completely undermine[d]” their alle ged interests by exempting te ns of millions of Americans and staying enforcement against many others, Newland, 2012 WL 3069154 at *7–*8, yet they refuse to exempt Gr ote. And the government could pursue, and
1

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 12 of 58 PageID #: 292
already does pursue, the less restrictive means of directly delivering the drug items at issue here. Id.
Grote is faced with imminent harm under Defendants’ mandate. Immediate injunctive relief is needed to protect Grote’ s religious freedom and preserve the status quo.
FACTUAL BACKGROUND As is set forth in Plaintiffs’ Verified Complaint (which is evidentiary support for this motion), Plaintiffs William D. Grote, III; Willi am Dominic Grote, IV; James L. Brau n; Michael R. Grote; W. Frederick Grote, III; and John R. Grote ("t he Grote Family") are practicing and believ ing Catholic Christians. (Verified Complaint, ¶¶ 2, 18-23). The Grote Family owns and operates Plaintiffs Grote Industries, Inc. and Grote Industries, LLC (“Grote Industries”) a privately held, for profit business manufacturing vehicle safety systems, headquartered in Madison, Indiana.1 (Verified Complaint, ¶¶ 3, 16- 17, 24). Grote currently has approximat ely 464 full-time employees in the United States. (Verified Complaint, ¶ 3). The Grote Family seeks to run Grote Industries in a m anner that reflects their sincerely held religious beliefs. (Verif ied Complaint, ¶¶ 4, 34-35). The busines s philosophy of Grote Industries is defined as “a set of beliefs on which all of its policies and actions are based” and its management guidelin es strive to maintain the highest ethical standards and operate with “personal integrity” as t he foundation of success. (Verified Complaint ¶ 40). T he Grote Family, based upon thes e sincerely held religious
1 Unless context indicates otherwise, throughout this Brief "Grote" refers collectively to the Grote Family and Grote Industries.
2

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 13 of 58 PageID #: 293

beliefs as formed by the moral teachings of the Catholic Church, believes that God

requires respect for the sanctity of hum an life and for the procreative and unitiv e

character of the sexual act in marriage. (Ver ified Complaint, ¶¶ 4, 36-37). Applying this

religious faith and the moral teachings of t he Catholic Church, t he Grote Family has

concluded that it would be sinful and immoral for them to intentionally participate in, pay

for, facilitate, or otherwise supp ort abortifacient drugs, contracept ion, or sterilization

through health insurance coverage they off er at Grote Industries. (Verified Complaint,

¶¶ 5, 38-39). As a consequence, the Grote Family provides health insurance benefits to

their employees that omits coverage of

abortifacient drugs, contraception, an d

sterilization. (Verified Compla int, ¶¶ 6, 47) . The Grote Industries health ins urance plan

is self-insured, and the plan year renews each year on January 1, the next renewal date

thus occurring on January 1, 2013. (Verified Complaint, ¶¶ 6, 46-47). Grote and its

owners adhere to the centuries -old biblical view of Christi ans around the world, that

every human being is made in the image and likeness of God from the moment of its

conception/fertilization, and that to help destroy such an innocent being, including in the

provision of coverage in health insurance, would be an o ffense against God. (Verified

Complaint, ¶ 5).

With full knowledge that many religious citi zens hold the same or similar beliefs,

in February 2012, the Defendants finalized rules through the Departments of HHS,

Labor and Treasury that force Plaintiffs to pa y for and otherwise facilitate the insuranc e

3

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 14 of 58 PageID #: 294
coverage and use of abortifaci ent drugs, contraception, sterilization and related
education and counseling. 2 (Verified Complaint, ¶ 7).
The Mandate applies to Plaint iffs solely because they wish t o operate their
business in the United States of America. As have m any entities organized by peopl e
of faith, the Grote Family has concluded that comp liance with the Mandate would
require them to violate their deeply held reli gious beliefs they believ e are decreed by
God Himself through His Church, and to contribute thr ough society through business in
a way that is cons istent with their religious ethics, deeply held religious beliefs, and the
moral teachings of the Catholic Church. (Verified Complaint, ¶¶ 8, 9).
As set forth in detail below, Defendant s’ refusal t o accommodate Grote’s
conscience is highly selective. PPACA expressly exempts a variety of health plans from
the Mandate, and the gover nment has provided thousands of specific exemptions from
the PPACA for various entities such as large corporations. (Verified Complaint, ¶¶ 79 -
91). However, Grote is not exempt from the Mandate and is therefore left with a choic e
of complying with the Mandate in violation of their religi ous beliefs or ignoring the
Mandate and facing substantial penalties. (Verified Complaint, ¶¶ 62-66).
2 The rules in question are collectively referred to hereinafter as the “Preventive Services Mandate” or the “Mandate.” The Mandate consists of a conglomerate of authorities, including: “Group Health Plans an d Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient P rotection and Affordable Care Act,” 77 Fed. Reg. 8725–30 (Feb. 15, 2012); the prior interim final rule found at 76 Fed. Reg. 46621–26 (Aug. 3, 2011 ) which the Feb. 15 rule adopted “without change”; the guidelin es by Defendant HHS’s Health Resources and Services Administration (HRSA), http://www.hrsa.gov/womensguidelines/ , mandating that health plan s include no-cost-sharing coverage of “All Food and Drug A dministration approved contra ceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity” as part of required women’s “preventive care”; regulations issued by Defendants in 2010 directing HRSA to develop those guidelines, 75 Fed. Reg. 41726 (July 19, 2010); the statutory authority found in 42 U.S.C. § 300gg -13(a)(4) requiring unspecified preventive health services generally, to the extent Defendants have u sed it to mandate coverage to which Plaintiffs and other employers have religious objections; penalties existing throughout the United States Code for noncompliance with these requirements; and other provisions of PPACA or its implementing regulations that affect exemptions or other aspects of the Mandate.
4

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 15 of 58 PageID #: 295

The Patient Protection and Af fordable Care Act of 2010 (PPACA) requires

employers with over 50 full-time employees to provide a certain minimum level of health

insurance to their employees. (Verified Complaint, ¶ 50). PPACA requires health plan s

to include coverage of prevent ive health services at no cost-sharing to patients, but

does not define what is incl udes in those services. 42 U.S.C. § 300gg-13(a)(4).

Defendants issued regulations ordering HHS’s Health Resources and Servic

es

Administration (HRSA) to decide what would be mandated as women’s preventive care.

75 Fed. Reg. 41726–60 (July 19, 2010). HRSA iss ued such guidelines in July 2011,

mandating coverage of “All Food and Drug Administrati on approved contraceptive

methods, sterilization procedur es, and patie nt education and co unseling for all women

with reproductive capacit y.” HRSA, “Women’s Pr eventive Services,” available at

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

Within the category of “FDA-approved contraceptives” which must be covered

under the Mandate are several drugs or dev ices that may cause the demise of an

already-conceived-but-not-yet-implanted human embryo, such as “emergency

contraception” or “Plan B” dr ugs (the so-called “morning after” pill). Also included is the

drug “ella” (the so-called “week after” pill), which s tudies show can function to kill

embryos even after they have implanted in t he uterus, by a mechanism similar to the

abortion drug RU-486. The manufacturers of some such drugs, methods and devices in

the category of “FDA-approved contraceptive me thods” indicate that they function t o

cause the demise of an early human embryo . (Verified Complaint, ¶¶ 54- 56). The

Mandate also requires group healt h care plans to pay for t he provision of counseling,

education, and other information concerning contraception (including devices and drugs

5

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 16 of 58 PageID #: 296
such as Plan B and ella that cause early abortions or harm to human embryos) and sterilization for all wo men beneficiaries wh o are capable of bear ing children. (Verified Complaint, ¶ 57).
To Grote and its owners, th is coverage is not morally different than surgical abortion. Defendant s have now mandated t hat the Grotes viol ate their deeply held religious beliefs by immediately inserting coverage of abortifacients (and education and counseling in favor of the same) into the employee health plan. This is something Grote cannot comply with in good conscience. (Verified Complaint, ¶ 9).
The Mandate applies to the first health insurance plan-year begin ning after August 1, 2012. (Ve rified Complaint, ¶ 58). As a result, Grote will be required to provide coverage of the above- described items consistent with the Mandate starting with Grote Industries’ January 1, 2013 plan. (Verified Complaint, ¶ 92). Grote cannot avoid the Mandate by simply refusing to prov ide health insura nce to its employees, because the PPACA imposes monetary penalties of approx imately $2,000 per employee per year on entitie s that would so refuse. PPACA would als o impose monetary penalties of approximately $100 per day per employee if Grote Industries were to continue to offer its self-insured plan but continued to omit abortifacients, contraceptives and sterilization from coverage under t hat plan. (Verified Co mplaint, ¶¶ 62-65). In addition, if Grote does not submit to the Mandate it co uld be subject to a range of enforcement mechanis ms that exist under ERISA, including but n ot limited to civil actions by the Secretary of Labor or by plan participants and beneficiaries, whic h would include but not be limited to relief in the form of j udicial orders mandating that the Grote Family and Grote Industries violate t heir sincerely held religious beliefs and
6

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 17 of 58 PageID #: 297
provide coverage for items to which they have a religious objection. (Verified Complaint, ¶ 66).
This Court is the only recours e to protect Grote and its owners from the Mandate’s assault on the religious freedom. Otherwise, Grote has no adequate remedy at law. (Verified Complaint, ¶ 98). It faces immediate threat of the Mandate’s penalties, and endangerment of it s employees’ health plan, unle ss this Court orders preliminary injunctive relief as soon as possible. Gr ote is suffering irreparable harm by Defendants’ coercion, which blatantly violates longsta nding religious conscience, speec h and other protections found in federal statutes and the constitution.
ARGUMENT In order to obtain a preliminary injunction, Grote is required to “show that its case has some likelihood of success on the merits and that it has no adequate remedy at law and will suffer irreparable harm if an injunction is denied. Stuller, Inc. v. Steak N Shak e Enterprises, 2012 U.S. App. Lexis 17921 at *5 (7 th Cir. Aug. 24, 2012), quoting Ezell v. City of Chicago , 651 F.3d 684, 694 (7 th Cir. 2011). If Grote meets these threshold requirements, then the Court must balanc e the harm Grote would suffer without an injunction against the harm De fendants would suffer if the injunction were granted and consider whether an injunction is in the public ’s interest. Stuller, supra. Wh en balancing the harms, “the court weighs these factors against one another in a sliding scale analysis . . . which permits district c ourts to weigh the competing consideration s and mold appropriate relief.” Id. at *6. Gr ote meets all of thes e requirements and is therefore entitled to a preliminary injunction.
7

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 18 of 58 PageID #: 298

I. GROTE IS LIKELY TO SUCCEED ON THE MERITS.

A. THE MANDATE VIOLATES THE RELIGIOUS FREEDOM RESTORATION ACT.

Congress passed RFRA to subject governm ent burdens on religious exer cise to

“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).” 42 U.S.C. § 2000bb(b)(1); see generally

Gonzales v. O Centro Espir ita Beneficente Unia o do Vegetal , 546 U.S. 41 8, 424, 431

(2006) (describing orig in and intent of RF RA, 42 U. S.C. § 2000bb et seq.). Under

RFRA, the federal government may not “subs tantially burden” a person’s exercis e of

religion unless the government “‘demonstrates that applic ation of the burden to the

person’ represents the least restrictive me ans of advancing a c ompelling interest.” O

Centro, 546 U.S. at 423 (quoting 42 U.S.C.

§ 2000bb-1(b)). Once a plaintif f

demonstrates a substantial bur den on his religious exercise, RFRA requir es that the

compelling interest test be satisfied not ge nerically, but with respect to “the particular claimant.” O Centro, 546 U.S. at 430–31.3

1) GROTE’S ABSTENTION FROM PROVIDING CONTRACEPTION AND ABORTION-INDUCING DRUGS IN ITS EMPLOYEE HEALTH CARE COVERAGE QUALIFIES AS “RELIGIOUS EXERCISE” UNDER RFRA.

RFRA broadly defines “religious exercise” to “include[] any exer cise of religion,

whether or not compelled by, or central to , a system of religious belief.’” 42 U.S.C. §

2000bb-2(4), as amended by 42 U.S.C. § 2000cc-5( 7)(A). A plaintiff’s “[r]eligio us

belief must be s incere to be protected by the First Am endment, but it does not have t o

3 The government’s burden to satisfy strict scrutiny under RFRA is the same at the preliminary injunction stage as at trial. See O Centro, 546 U.S. at 429-30 (citing Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)).
8

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 19 of 58 PageID #: 299

be orthodox.” Cf. Grayson v. Schuler, 666 F.3d 450, 454 (7th Cir. 2012) (applying same

standard under Free Exercise Clause).

To refrain from morally objectionable activ ity is part of the exer cise of religion.

The “exercise of religion” encompasses a bel ief that one must avoid participation in

certain acts. See, e.g., Employment Division v. Smith , 494 U.S. 872, 877 (1990)

(explaining under the Free Exer cise Clause that that “the ‘exercise of religion ’ often

involves not only belief and prof ession but the performance of ( or abstention from )

physical acts”). Thus, a person exercises religion by avoiding work on certain days (see

Sherbert, 374 U.S. at 399), or by refraining from sending children over a certain age to

school (see Wisconsin v. Yoder , 406 U.S. 205, 208 (1972)).

See 42 U.S.C. §

2000bb(b)(1) (incorporating Sherbert and Yoder in RFRA). Similarly, a person’s

religious convictions may compel her to refrain from facilitating prohibited conduct by

others. See, e.g., Thomas v. Review Bd. , 450 U.S. 707, 714–16 (1981) (recognizing

religious exercise in refusing to “produc[e] or directly aid [] in the manufacture of items

used in warfare”). As the Seventh Circuit has held, a s ubstantial burden on religiou s

exercise “is one that forces adherents of a religion to refrai n from religiously motivated

conduct, inhibits or c onstrains conduct or expr ession that manifests a central tenet of a

person's religious beliefs, or compels conduct or expression that is contrary to those

beliefs.” Mack v. O'Leary, 80 F.3d 1175, 1179 (7th Cir.1996) (vacated on other

grounds).

As explained above, the Grot e Family seeks to run Grote Industri es in a manner

that reflects their sincerely held religious be liefs. The Grote Fami ly bases its beliefs on

the teachings of the Catholic Church, and t herefore believes that God requires respect

9

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 20 of 58 PageID #: 300
for the sanctity of human life and for the proc reative and unitive char acter of the sexual act in marriage. As a result, the Grote Fami ly has concluded that it would be sinful and immoral for them to intentionally participate in, pay for, facilitate, or otherwis e support abortifacient drugs, contraceptio n, or ster ilization, through hea lth insurance coverage they offer at Grote Industries. To offer su ch coverage through it s employee insuranc e policy would violate Grote’s faith. As a self-i nsurer, if Grote’s plan covered abortifacient drugs, contraception and steriliz ation procedures, Grote itself would be b uying those items for its employ ees, in cl ear violation of its sincer ely held religious beliefs. Therefore, Grote’s abstention f rom doing what the mandate requires qualifies as “religious exercise” within the meaning of RFRA.
a. Grote Industries can exercise religious beliefs. In several lawsuits against the Mandat e, the government has argued that a forprofit entity is categorically incapable of exercising religion. This position is flawed on a number of levels. First, “free exercise of religion” in RFRA, and in the First Amendment that RFRA explic itly seeks to enhance, has always been recognized as including the exercise of religion in all areas of life, including in business and “profitable” enterprise. There is s imply no “ business exception” to RFRA t o the First Amendment. RFRA protects “any” exercis e of religion. 42 U.S.C. § 2000bb-2(4); 42 U.S.C. § 2000cc 5(7)(A); see also United States v. Philadelp hia Yearly Meeting of the Religious Soc’y of Friends, 322 F. Supp. 2d 603 (E.D. Pa. 2004) (Q uaker Church’s refusal to levy its employee’s wages was an exercise of re ligion under RFRA). The government’s proposal that a business cor poration has no capability to exer cise religion is “conclusory” and “uns upported.” McClure v. Sports and Health Club, Inc. , 370 N.W.2d
10

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 21 of 58 PageID #: 301
844, 850 (Minn. 1985). Both Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119–20 & n. 9 (9th Cir. 2009), and EEOC v. Townley Eng'g & Mfg. Co. , 859 F.2d 610, 620 n.15 (9th Cir. 1988), recognized that a for-profit and even “secular” corporation could assert free exercise claims.
The government’s pr emise seems to be t hat one cannot exerci se religion while engaging in business. But judicially the context of free exercise has usually involved the pursuit of financial gain. In Sherbert, 374 U.S. at 399, and Thomas, 450 U.S. at 709, an employee’s religious beliefs were burdened by not receiving u nemployment benefits. In United States v. Lee, 455 U.S. 252, 257 (1982), the Cour t held an employer ’s religious beliefs were sufficiently burdened by paying taxes for workers so as to require the government to justify its burden. In Fraternal Order of Poli ce v. City of Newark , 170 F.3d 359, 360 (3d Cir. 1999), an employee’s bid to continue his employ ment was burdened by discriminator y grooming rules. Many other cases have recognized that business corporations can exercise religion. Roberts v. Bradfield , 12 App. D.C. 453, 464 (D.C. Cir. 1898) (recognizing that the right of “free exercis e of religion” inheres in “an ordinary private corporation”). See also Commack Self-Service Kosher Meats, Inc. v. Hooker, 800 F. Supp. 2d 405 (E.D.N.Y. 2011) ( analyzing free exercise claims without regard to profit motive); Maruani v. AER Services, Inc. , 2006 WL 2666302 (D. Minn. 2006) (analyzing religious First Amendment claims by a for-profit business); Morr-Fitz, Inc. et al. v. Blagojevich , No. 2005-CH-000495, slip op. at 6–7, 2011 WL 1338081 (Ill. Cir. Ct. 7th, Apr. 5, 2011) (ru ling in favor of t he free exercise rights of three pharmacy corporations and their owners). A court anal yzing a fr ee exercise claim does not ask whether the claimant is the right category of person; it asks “whether [the challenged
11

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 22 of 58 PageID #: 302
statute] abridges [rights] that the First Amendment was meant to protect.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978).
Congress has rejected the government’s restrictive view in many ways. PPACA itself lets employees and “facilit[ies]” assert religious beliefs for or against “provid[ing] coverage for” abortions generally, without requiring them to be non-prof its. 42 U.S.C. § 18023. Congress has repeatedly authorized similar objections, including to contraceptive insurance coverage. 4 These protections cannot be reconciled with the government’s view that anything connected with commerce excludes religion.
Second, the government has tended to conf use the protection of “any” “exer cise of religion” under RFRA, with narrower categorie s such as “religious employer” in Title VII employment discriminati on. See 42 U.S.C. § 2000e–1(a). This argument cannot help the government in this case, for two reas ons. Initially, the text Congress used in RFRA did not limit its pr otections to a “religious corporati on, association, or society” as stated in its previously enact ed statute of Title VII. C ongress instead protected the “exercise of religion,” period, by anyone. T o read a “religious employer” limit into RFRA would violate the text of the st atute. RFRA protects “fr ee exercise of religion,” which does not turn on whether the plaintiff is a “religious corporation.”
Third, to the extent that the gover nment might argue RF RA only protects religious exercise by “persons,” and that persons do not include corporations, this argument contradicts clear Supreme Court precedent. “F irst Amendment protection
4 See, e.g., Consolidated Appropriations Act of 2012, Pub. L. No. 112- 74, Title VII, Div. C, § 727; id. at Title VIII, Div. C, § 808; see also 42 U.S.C. § 300a-7; 42 U.S.C. § 2996f(b)(8); 20 U.S.C. § 1688; 42 U.S.C. § 238n; 42 U.S.C. § 1396u-2(b)(3)(B); 42 U.S.C. § 1395w-22(j)(3)(B); and Pub. L. 112-74, Title V, § 507(d). See also 48 C.F.R. § 1609.7001(c)(7).
12

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 23 of 58 PageID #: 303

extends to corporations,” and a F irst Amendment right “does not lose First Amendment

protection simply bec ause its source is a c orporation.” See Citizens United v. Federal

Election Comm’n, 130 S. Ct. 876, 899 (2010). The lead plaintif f in O Centro itself was

an entity rather than a natural person, and the Suprem e Court vindicated free exercise

rights on behalf of an entity in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S.520 (1993) (emphasis a dded). In fact, Courts have frequently recognized that

constitutional rights apply to corporatio ns. The Seventh Cir cuit has express ly

recognized that “a corporat ion, rather than a natural person” may assert a First Amendment right. DiMa Corp. v. Town of Hallie , 185 F.3d 823, 826 n. 2 (7 th Cir. 1999).

“[I]t is well understood that corporations should be treated as natural persons for

virtually all purposes of consti tutional and statutory analysis.” Monell v. Dept. of Social

Services, 436 U.S. 658, 687 (1978). “That corporation s are in law, for civil purposes,

deemed persons is unquestionable.” United States v. A medy, 24 U.S. 392, 11 Wheat.

392 (1826). “[C]orporations pos sess Fourteenth Amendment rights . . . through the

doctrine of incorporation, [of] th e free exercise of religion.” Primera Iglesia Bautista

Hispana of Boca Rat on, Inc. v. Broward County , 450 F.3d 1295 (11th Cir. 2006). It

must be presumed that when Congress pa

ssed RFRA t o build o n the First

Amendment’s protection of free exercis e of religion, it was aware of the centuries-old

judicial interpretation that corporations are “persons” with constitutional rights. See

Lindahl v. Office of Personnel Management , 470 U.S. 768 (1985) (“Congress is

presumed to be awar e of an administrative or judicial interpretation . . . .” (quoting

Albemarle Paper Co. v. Moody , 422 U.S. 405, 414 n. 8 ( 1975))). If for-p rofit

corporations can have no First Amendment “purpose,” this would overturn the Supreme

13

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 24 of 58 PageID #: 304
Court’s vindication of First Amendment rights for for-profit companies such as the Ne w York Times. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
b. Grote’s religious owners can exercise religion under RFRA. Grote can and is bringing fr ee exercise of religion c laims on behalf of not only itself but its religious owners. The Grote Family owns Grote Industries. The Grote Family runs Grote Industries consistent with t he religious beliefs of the individual family members. Therefore, the rights of the Grote Family are at stake here, just as much as the religious beliefs of Grote Industries. Several cases recognize a corporation can assert religious beliefs on behalf of its owners when the gov ernment requires the corporation to do things in violat ion of the owners’ religious beliefs. This is becaus e a busines s is an extension of the moral activities of its owner s and operators. Both Stormans, 586 F.3d at 1119–20 & n.9, and Townley, 859 F.2d at 620 n. 15, affirm that the owners of a for-profit, “secular” corporation had their religious beliefs burdened by regulatio n of that corpo ration, and that the corporation could sue on behalf of its owners to protect those beliefs. See also McClure, 370 N.W.2d at 850.
2) THE MANDATE IMPOSES A SUBSTANTIAL BURDEN ON THE RELIGIOUS BELIEFS OF GROTE INDUSTRIES AND ITS OWNERS.
Not only does the Mandate bur den Grote’s and its owners’ exercise of religious beliefs, but the burden is subs tantial. The gover nment “substantially burdens” religious exercise when it puts “‘subst antial pressure on an adherent to modify his behavior and to violate his beliefs.’” Thomas, 450 U.S. at 718; see also Mack v. O'Leary, 80 F.3d 1175, 1179 (7th Cir.1996) (vacated on other grounds) (holding that a substantial burden on religious exercise “is one that forces adherents of a religion to refrain from religiously
14

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 25 of 58 PageID #: 305
motivated conduct, inhibits or c onstrains conduct or expression that manifests a central tenet of a person's religious beliefs, or compels conduct or expression that is contrary to those beliefs”). The mandate requires Grot e to provide employees with insurance coverage that Grote and its ow ners believe violate their re ligious beliefs. If Grote continues to offer insurance lacking the mandated coverage, as it has for years, it faces a penalty of $100 per day per employee, as well as the prospect of laws uits by the Defendant Secretary of Labor and by its own plan partic ipants. 26 U.S.C. § 4980D(a) , (b) (financial penalties); 29 U.S. C. § 1132(a) (providing for civil enforcement actions b y the Secretary of Labor, as well as by plan participant s). Alternatively, if Grote ceased offering employee insurance altogether, this would not only harm its 464 employees but subject it to an annual assessment of $2,000 per employee. 26 U.S.C. § 4980H. Thus the Mandate forces Grote and its owners to choose between violating their sincerely held beliefs and religious integrity and subj ecting themselves to substantia l fines and competitive disadvantages.
To call these burdens “substantial” is an understatement. The Supreme Court has struck down religious burdens fa r less dramatic. For instance, Sherbert involved a plaintiff who was not required to work on the Sabbath, but was merely denied unemployment benefits for refusing such work, and the Court deemed this an “unmistakable” substantial pressure on the plaintiff to aban don that observance. 374 U.S. at 404 (reasoning that the law “force[d] [plaintiff] to choose between following the precepts of her religion and forfeiting benefit s, on the one hand, and abandoning one of the precepts of her re ligion in order to accept work, on the other hand,” and that “the pressure on her to for ego that practice is unmistakable”); see also Thomas, 450 U.S. at
15

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 26 of 58 PageID #: 306
717–18 (finding burden on religious exercis e “[w]here the state conditions receipt of an important benefit upon c onduct proscribed by a religiou s faith. . . thereby putting substantial pressure on an adherent to modify his behavior and to viol ate his beliefs”). Sherbert and Thomas therefore declared even “indir ect” pressure to be a substantial burden. See Thomas, 450 U.S. at 718 (exp laining “[w]hile t he compulsion may be indirect, the infringement upon free exercise is nonetheless substantial”).
With “direct” pressure, the Supreme Court has been even more exacting. For instance, Yoder struck down a five dollar fine on Amish parents for not sending their children to high school. The Court reasoned that “[t]he [law’s] impact” on religious practice was “not only severe, but inescapabl e, for the. . . law affirmatively compels them, under threat of crimi nal sanction, to perform acts undeniably at odds with fundamental tenets of their re ligious beliefs.” 406 U.S . at 218. This exactly describes the Mandate on its face: it “affirmatively co mpels” Grote, under threat of severe consequences—lawsuits by the Defendants, fines, regulatory penalties, a prohibition on providing employee health benefits, competitive disadvantage—“to perform acts undeniably at odds with the fundamental tenets of their religious beliefs.” Yoder, 406 U.S. at 218. Grote could avoid this st eep price, of course, by abandoning its religious convictions. But this puts Grote squarely wit hin the definition of “substantial burden” set forth in Thomas because it faces substantia l pressure to modify its behavior and violate its beliefs.
Defendants themselves have acknowledged the extent of this burden. The Mandate contains an exemption for certain c hurches and religious orders, in order to “take[] into account the effect on the religious beliefs of certain religious employers.” 76
16

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 27 of 58 PageID #: 307

Fed. Reg. at 46623. And both Defendant S ebelius and President Obama have publicly

recognized that the Mandate burdens religious believers. In her January

20

announcement previewing the one-year safe harbor, Secretary Sebelius stated that the

extension “strikes the appropriate balanc e between r especting religious freedom and increasing access to import ant preventative services.” 5 Likewise, in his F ebruary 10

press conference Pr esident Obama acknowledged t hat religious liberty is “at stake

here” because some institutions “have a religious objection to directly providing insurance that covers contraceptive services.” 6 The President explained that this

religious liberty interest is why “we orig inally exempted all churches from this

requirement.” Finally, the basic premise of the Defendants’ most recent rule-making on

the Mandate is to explore alternate insur ance arrangements that would avoid burdening

religious organizations’ consc iences. See 77 Fed. Reg. 16501, 16503. Thes e

statements candidly acknowledge that coercing religious objectors substantially burdens their religious exercise.7

The United States District Co urt for t he District of Colorado ruled that the

Mandate threatens a substantia l burden on the religious beliefs of a for-profit company

run by religious believers, such that a preliminary injunction is warranted. Newland v.

Sebelius, 2012 WL 3069154 at *6 (D. Colo. Ju ly 27, 2012). A court in Missouri

5 The Secretary’s statement regarding the one-year extension can be

found at:

http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited October 6, 2012).

6 A transcript of the Presid ent’s remarks is available at http://www.w hitehouse.gov/the-press-

office/2012/02/10/remarks-president-preventive-care (last visited October 6, 2012).

7 Congress has elsewhere recognized the need to accommo date the sam e burden. See, e.g.,

Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, Title VII, Div. C, § 727 (protecting religious

health plans in the federal employees’ health benefits program from being forced to provide contraceptive

coverage); id. at Title VIII, Div. C, § 808 (affirming that the District of Columbia must respect the religious

and moral beliefs of those who object to providing contraceptive coverage in health plans).

17

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 28 of 58 PageID #: 308

disagreed, however, and accepted the gov ernment’s argument that health insurance

provision of abortion-inducing pills, contrac eption or sterilization is not a substantial

burden. O’Brien v. U.S. Dep ’t of Health & Hum an Srvs., 2012 WL 4481208 (E.D. Mo.

2012). The O’Brien decision is both incorrect and inapplicable to Grote.

O’Brien found that payment into a health

insurance plan that covers

objectionable practices is merely “indirect financial support of a practice ,” in contrast to

“directly and inevitably prevent[ing] plaint iffs from acting in accordanc e with their

religious beliefs.” Id. at *6. This is not factually true regarding Grote, because while the

plaintiff in O’Brien paid an insurance company, Grote’s health plan is s elf-insured. The

Mandate is forcing Grote to directly pay fo r objectionable items it self, not to pay an

external insurance company for coverage— there is no factual separation from the

payment. And Grote contends that being fo rced to provide insurance coverage for the

objectionable items— not merely their use—is a violation of their religious beliefs. More

fundamentally, O’Brien is an impermissible judicial decision of moral theology: a

determination that promotion of contraception and abortifacients is morally acceptable if

it is not too proximate. The Supreme Court rejected the same attempt in Thomas,

where the government claimed the armament manufacturing activity to which the

plaintiff objected was “sufficiently insulated” from his objection to war. 450 U.S. at 715.

“Thomas drew a line, and it is not for us to say that the line he drew was an

unreasonable one. Courts should not undertake to dissect religious beliefs . . . .” Id.

O’Brien likewise contradicts U.S. v. Lee , which explicitly held that the for-profit

religious plaintiff had met its showing to es tablish a sufficient burden on it s religious

beliefs to s upport a free exercis e of religion claim. 455 U.S. at 257. In doing so, the

18

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 29 of 58 PageID #: 309
Court rejected the government’s attempt to in sist that there was no substantial burden on “the integrity of the Amish re ligious belief or observance.” Id. Instead the Supreme Court found the burden sufficiently “interferes with the free exercise rights of the Amish.” Id. Lee said that for the Court to conclude that the burden on the plaintiff did not sufficiently violate the faith in order to sa tisfy a free exercis e claim would require an interpretation of faith that is “not within ‘the judicial function and judicial competence’” Id. (quoting Thomas, 450 U. S. at 716). O’Brien’s attempt to judge between different levels of moral culpab ility is incompatible with t he Supreme Court’s defin ition of substantial burden, which does meas ure the religious beliefs, but the “pressure” the government applies against those beliefs. Thomas, 450 U.S. at 718. As explained above, the Mandate here explic itly orders a violation of beliefs and imposes intense penalties as direct pressure to force Grote do so.
The Mandate here is even more proximat e than the substantial burden found in Lee, because here Grote must provide objecti onable coverage directly to other privat e citizens, whereas in Lee the plaintiffs sent the money to a multi-trillion dollar budget in Washington. Likewise, the argument that there is no subst antial burden on Grote because it is merely being requir ed to provide insurance coverage for sterilization, birth control, and abortifacient drugs, while the obje ctionable items are actually purchased by Grote’s employees, not Grote, is a theologi cal distinction that does not reduce the extent of t he burden on religious exercise. O’Brien would c onstrain free exercise to “ritual,” the “Sabbath” and child -rearing, but would allow the government to coerce believers to help other people engage in objectionable activities. O’Brien, 2012 W L 4481208 at *6. This idea sever ely constricts the First Amendment and RFRA (which
19

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 30 of 58 PageID #: 310
protects “any” free exercise of religion, not merely freedom of worship). Instead, Lee requires that the Court recognize a suffi cient burden showing and apply the applic able scrutiny level, which is strict scrutiny under RFRA and O Centro.
The government is also foreclosed from arguing that merely because a corporation provides its ow ners limited liab ility, there is no relig ious burden on the owners. That conclusion does not follow. Limited liability is merely one characteristic of a business corporation, and it is not the mora lly relevant one here. Grote’s religiou s owners have adopted beliefs that make it i mmoral for them to implement the Mandate’s commands through the entity they own for religious purposes. This is why Stormans and several other cases concluded matter-of- factly that a gove rnment burden on a business corporation is a burden on its clos e holding family owners and directors. 586 F.3d at 1119–20; McClure, 370 N.W.2d at 850; Jasniowski, 678 N.E.2d at 749; MorrFitz, Inc., No. 2005- CH-000495, slip op. at 6–7. Limited liability is not a talisman by which the government may trample on the religious beliefs of business owners.
3) THE MANDATE CANNOT SATISFY STRICT SCRUTINY. Defendants cannot es tablish that their coer cion of Grote is “in f urtherance of a compelling governmental interes t.” RFRA, with “the strict scrutin y test it adopted,” O Centro Espirita, 546 U.S. at 430, im poses “the most demanding test known to constitutional law.” City of Boerne, 521 U.S. at 534. A compelli ng interest is an interest of “the highest order,” Lukumi, 508 U.S. at 546, and is imp licated only by “the gravest abuses, endangering paramount interests,” Thomas v. Collin s, 323 U.S. 516, 530 (1945).
20

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 31 of 58 PageID #: 311
Defendants cannot s atisfy strict scrutiny by showing a generaliz ed interest “in the abstract,” but instead must show a compel ling interest “in the circumstances of this case” by looking at the particu lar “aspect” of the interest as “addr essed by the law at issue.” Cal. Democratic Party v. Jones , 530 U.S. 567, 584 (2000); O Centro Espirita, 546 U.S. at 430–32 (RFRA’s test can only be satisfied “through application of the challenged law ‘to the person’—t he particular claimant”); see also Lukumi, 508 U.S. at 546 (rejecting the ass ertion that protecting public health was a c ompelling interest “in the context of these ordinanc es”). The government must “specifically identify an ‘actual problem’ in need of solving” and show that coercing Grote to co mply with the law in violation of its religious beliefs is “actually necessary to the solution.” Brown v. Ent m’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (June 27, 2011). If Defendants’ “evidence is not compelling,” they fail their burden. Id. at 2739. To be compelling, the government’s evidence must show not merely a correla tion but a “caus[al]” nexus between their Mandate and the grave interest it supposedly serves. Id. The governm ent “bears the risk of uncertainty . . . ambiguous proof will not suffice.” Id.
Defendants’ interest in coer cing Grote to provide cove rage of contraception, sterilization, and abortifacients is not compel ling. In other cases the gove rnment has attempted to identify two int erests—women’s health and equality by reducin g unintended pregnancy—as justifying the Mandate under RFRA. But these interests are generic and abstract. In O Centro Espirita, the Court held ev idence to be insufficient showing that Schedule I controlled substa nces were “extremely dangerous, ” because that “categorical” support coul d not meet the government’s RFRA burden to consider the “particular” exception requested by Grote. Id. at 432.
21

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 32 of 58 PageID #: 312
The simple fact is that even if contra ception and abortifacient drugs are assumed to provide health and equality to women, Defendants have not shown a c ompelling interest to deliv er those benefits by means of coercing Grote to do so. As discussed below, the government already delivers and subs idizes contraception and abortifacients to women and could do so here as well without forcing Grote to do it.
a. Defendants cannot identify a compelling interest. The most striking ob stacle to Defendants’ assertion of a compelling interest is that the government itself has voluntarily omitted 191 million people from the Mandate. Newland, 2012 WL 3069154 at * 1. This amounts to nearly two-thirds of the nation, and is being offered by the government for secular reasons. The Mandate does not apply to thousands of plans that are “grandfathered” under PPACA. See 76 Fed. Re g. at 46623 & n.4. Als o, the Mandate does not apply to members of a “recognized religious sect or division” that co nscientiously objects to acceptance of public or private insurance funds. 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii). And the Mandate exempts from its requirements “religious employers,” defined as churches or religious orders that primarily hire and serv e their own adherents and tha t have the purpose of inculcating their values . 76 Fed. Reg. at 46626. The federal government has decided that em ployers in any of these ca tegories simply do not have to comply with the Mandate. These are massive exemptions that belie any claim that the government has a compelling interest in coerci ng Grote to violate its religious beliefs. “[A] law cannot be regarded as protecting an interest ‘of the highest order’ when it leaves a ppreciable damage to that supposedly vital interest unprohibite d.” Lukumi, 508 U.S. at 520.
22

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 33 of 58 PageID #: 313
Defendants cannot c laim a “grav e” or “param ount” interest to impose the Mandate on Grote or other religious objec tors while allowing the identical “appre ciable damage” to 191 million people. No compelling interest exists when the gov ernment “fails to enact feasible measures to restri ct other conduct producing subst antial harm or alleged harm of the same sort.” Id. at 546–47. The exemptions to the Mandate “fatally undermine[] the Government’s broader content ion that [its law] will be ‘nec essarily . . . undercut’” if Grote is exempted too. O Centro Espirita, 546 U.S. at 434.
Defendants’ immense grandfathering exem ption has nothing to do with a determination that those 191 million e xempted people do not need co ntraceptive coverage, whereas Grote’s employees so mehow do. The exem ption was instead a purely political mane uver to garner vote s for PPACA by lettin g “President Obama ma[k]e clear to Americans that ‘if you like your health plan, you can keep it.’” 8 The grandfathering rule is in no way temporary. There is no sunset on grandfathering status in PPACA or its regulations. Instead, a plan can keep gr andfathered status in perpetuity, even if it raises fixed-cost employee contributi ons and, for several items, even if the increas es exceed medical inflation plus 15% ev ery year. Id. The government repeatedly calls it a “right” for a plan to main tain grandfathered status. See 75 Fed. Reg. 34,538, at 34,540, 34,558, 34,562, & 34,566.
Notably, grandfathered plans are subject to a variety of mandates under PPACA: no lifetime limits on cover age; extension of dependent coverage to age 26; no
8 HHS, Heal thCare.Gov, “Keeping the He alth Plan You Have: The Affordabl e Care Act and “Grandfathered” Health Plans,” available at http://www.healthcare.gov/news/factsheets/2010/06/keepingthe-health-plan-you-have-grandfathered.html (last visited October 5, 2012).
23

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 34 of 58 PageID #: 314

exclusions for children with pre- existing conditions; and others.9 But Congress deemed

the insurance Mandate at issue here

not important enough to impose it o n

grandfathered plans. Defendants therefore contradict the text of PPACA when they

take a litigation pos ition, contrary to Congress, that the Mandate of abortifacient

coverage is an interest “of the highest order.”

The flaw of Defendants’ supposed compelling interest is even more fatal her e

because Grote is a large employer of 464 employees and, according to Defendants,

“[m]ost of the 133 million Am ericans with employer-sponsored health insurance through

large employers will maintain t he coverage they have today.” Id. In other words,

Defendants have voluntarily excluded most

Americans situated alongside the

employees of Grote. They cannot demonstrate they have a paramount interest to force

Grote to comply with the Mandate in violation of its beliefs. Defendants are completely

content to leave 2/3 of the nation’s women without “healt h and equality” flowing from

this Mandate. Yet they would insist those same interests can pass the most demanding

test known to constitutional law. They cann ot. If the government can toss as ide such a

massive group of employees for political expedi ency, their “interest” in mand ating cost-

free birth control coverage cannot possibly be “paramount” or “grave” enough to justify

coercing Grote to violate its and its owners’ religious beliefs. See O Cent ro Espirita,

546 U.S. at 434 (“Nothing about the unique political status of the [exempt ed peoples]

makes their members immune from the health risks the Government asserts”).

In O Centro Espirita, the Supreme Court held that no compelling interest existed

behind a law that had a much more ur gent goal—regulating ex tremely dangerous

9 HealthCare.Gov, supra note 10.

24

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 35 of 58 PageID #: 315
controlled substances—and that had many fe wer exemptions than the broad swath of omissions from the Mandate. In that case the Court dealt with the Controlled Substances Act’s prohibition on “all use, ” with “no exception,” of a hallucinogenic ingredient in a tea, along with other Schedule I substan ces. 546 U.S. at 423, 425. But because elsewhere in t he statute there was a narrow re ligious exemption for Nativ e American use of a different substance, peyote, the Cour t held that the government could not meet its compelling interest burden even in its generalized interest to regulate Schedule I substances as applied to the plaintiffs in that case. Id. at 433. Even more so here, the government cannot satisfy its burden by pointi ng to general health benefits of contraception. Halting the use of extremely dangerous drugs is f ar more urgent than forcing religious objectors to provide cont raception coverage. Defendants’ grant of secular and religious exemptions for millio ns of other employee s betrays any alleg ed compelling interest they may have in forc ing Grote and its owners to comply with the Mandate against their religious beliefs.
The government cannot satisfactorily expl ain why employees of Grote must be subject to its Mandate while t he government itself voluntarily omits 191 million people. The government has no data s howing how many religious employers objecting to the Mandate exist, but their total nu mber of employees could cons titute only a fraction of a percent of the tens of millions of employees the government is voluntarily omitting. This is a quint essential illustration of Brown v. Ent m’t Merchs.’s insistence that the “government does not have a compelling interest in each marginal percentage point by which its goals are advanced.” 131 S. Ct. at 2741. As in O Centro, where government
25

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 36 of 58 PageID #: 316
exclusions apply to “h undreds of thousands” (here, millions), RFRA requ ires “a simila r exception” for the comparatively few people affected here. 546 U.S. at 433.
The Mandate on its face also is inconsistent with a com pelling interest rationale. Defendants have used their discret ion to write a “religious employ er” exemption into the Mandate for certain churches. 76 Fed. Reg. at 46626. But there is no nexus between the Mandate exemption’s crit eria and Defendants’ alleged interest, such that a compelling interest ex ists for non-exempt r eligious entities like Grote but is absent f or exempt ones lik e churches. On the cont rary, Defendants have simply engaged in political line-drawing based on w hat the president’s politic al base will acc ept, weighed against how much election-year resistance he may encounter. 10 Under RF RA, Grote cannot be denied a r eligious exemption on the premise t hat Defendants can pick and choose between religious objectors. See O Centro Espirita, 546 U.S. at 434 (since the law does “not preclude exceptions altogether; RFRA makes clear that it is the obligation of the courts to consider” other exemptions).
b. There is no “business exception” to RFRA’s compelling interest test.
In other cases the government has attempted to use United States vs. Lee to characterize RFRA’s scrutiny as not being ve ry strict in commercial contex ts. But O Centro Espirita does not allow the Court to apply a “s trict scrutiny lite” for a business RFRA claim, or indeed for any RFRA claim. “[T]he compelli ng interest test” of “RFRA challenges should be adjudicated in the sa me manner as constitutionally mandated
10 The New Y ork Times describes in great detail the politically-driven d eliberation that le d to the Mandate. Helene Cooper & Laurie Goodstein, “Rule Shift on Birth Control Is Concession to Obama Allies” (Feb. 10, 2012 ), available at http://www.nytimes.com/ 2012/02/11/health/policy/obama-to-offeraccommodation-on-birth-control-rule-officials-say.html?pagewanted=all (last visited Oct. 6, 2012).
26

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 37 of 58 PageID #: 317
applications of the test,” such as in speech cases. 546 U.S. at 430. O Centro explicitly
limited Lee to its context of a tax that was near ly universal, and the court did not allow
the government to claim “that a general interest in uniformi ty justified a substantial
burden on religious exercise.” Id. at 435.
Lee does discuss “statutory schemes which are binding on others in that activity.”
455 U.S. at 261. But t he Mandate here is emphatically not “binding on oth ers in th[e]
activity” of large employers pr oviding insurance. Whereas Lee’s tax contained only a
tiny exemption for some Amish, the Mandate here excludes:
• 191 million Americans in “grandfathered” plans ar e not subject to the Mandate, including “ most” large employer s, of whic h Grote is on e. “Keeping the Health Plan You Have,” supra note 8.
• Members of certain objecting religious groups need not carry insurance at all. See, e.g., 26 U.S.C. § 5000A(d)(2)(a) (“recognized religious sect or division”); id. § 5000A(d)(2)(b)(ii) (“health care sharing ministries”).
• Small employers (i.e., those with fewer than 50 employees) can drop employee insurance with no government penalty. 26 U.S.C. § 4980H(c)(2).
• Churches, church auxiliaries, and religious orders enjoy a blanket exemption from the mandate. 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012).
• Certain religiously affiliated non-profits were recently giv en an additional year before the mandate would be enforced against them. See HHS Bulletin, supra note 1.
The Mandate is many things, but “uniform” is not one of them. O Centro was impatient
with the government’s uniformity argument:
The Government's argument echoes t he classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling intere st test, of exceptions to “rule[s] of general applicability.”
27

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 38 of 58 PageID #: 318

546 U.S. at 436. Lee’s universal tax is not com parable to the Mandate and its

exceptions.

The law upheld in Lee was a tax to raise government funding. Governments

cannot function without taxes. Lee ruled that if ex emptions were allowed “[t]he ta x

system could not function.” 455 U.S. at 260. But the Unit ed States has functioned for

over 200 years without a feder al mandate compelling Grote or anyone els e to cover

contraception and abortifacients in insura nce. The Mandate is not a “government

program,” as discuss ed in Lee. It requires Grote to give specific contraception and

abortifacient services to private citizens, no t to pay money to the government for use in

the government’s own activities. This Mandate is private, not governmental. In fact, the

government has decided not to pursue its goals with a government program offering

contraception—of which many exist—but instead to conscript religiously objecting

citizens.

Moreover, Lee does not apply the scrutiny test applicable under RFRA. Lee was

a precursor to Smith, which expanded on Lee to adopt the s tandard that RFRA

affirmatively rejected. RFRA s pecifies that it is co difying its test “as set forth in

Sherbert, 374 U.S. 398 and Wisconsin v. Yoder , 406 U.S. 205 ( 1972).” 42 U.S.C. §

2000bb. RFRA omits Lee from this list. Lee itself never says it is requiring a

“compelling interest” or “least restrictive means.” But Sherbert and Yoder did apply

RFRA’s test. Sherbert involved a plaintiff’s bid for financial gain,

despite the

government’s generally applicable law. As scholars note:

The standard thus incorporated [by RFRA] is a highly protective one. . . . The cases incorporated by Congres s explain “compelling” with superlatives: “paramount,” “gravest,” and “highest.” Even these interests

28

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 39 of 58 PageID #: 319
are sufficient only if they are “not otherwise served,” if “no alternative forms of regulation would combat such abuses”. . . . Douglas Laycock and Oliver S. Thomas, “Interpreting the Religio us Freedom Restoration Act,” 73 TEX. L. REV. 209, 224 (1994).
c. The government cannot meet its evidentiary burden. The government also fails the compelling interest test because its “evidence is not compelling.” Brown v. Entm’t Merchs., 131 S. Ct. at 2739. At best, Defendants can point only to generic interests, marginal benefits, correlation not causation, and uncertain methodology. The Institute of Medicine Report on which the Mandate is based (“2011 IOM”),11 does not demonstrate the governm ent’s conclusions. At best, its studies argue for a generic health benefit fr om contraception. But the Mandate’s evidence must be tailored to pr ove the necessity of compelling Grote to participate, not to mere generic health interests. O Centro, 546 U.S. at 430–31. The government cites no pandemic of unwanted births at Grote or similar entitie s, which cause catastrophic consequences for health and employees. It could be that employees of s uch entities experience zero negative health consequences absent the Mandate, for any number of reasons. At best, Defendants do not know. But Defendants “bear the risk of uncertainty,” Brown, 131 S. Ct. at 2739. Speculat ion and ge neralizations will no t suffice. Nowhere does the IOM cite evidence sh owing that the Mandate would even increase contraception use—which is a ne cessary corollary t o saying health and equality from unintended births would result. Instead, the IOM’s sources show: 89% of
11 Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps (2011), available at http://www.nap.edu/catalog.php?record_id=13181 (last visited October 5, 2012).
29

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 40 of 58 PageID #: 320

women avoiding pregnancy ar e already practicing contraception; 12 among the other 11%, lack of access is not a statistically sign ificant reason why they do not contracept;13

even among the most at-risk populations, cost is not the reason those women do no t contracept.14 The studies cited at 2011 IOM pp. 109 do not show that cost leads to non-

use generally, but relate only to women swit ching from one cont raception method to

another.

The government cannot show t hat the Mandate would prevent negative health

consequences. “Nearly all of t he research is based on c orrelation, not evidenc e of

causation, and most of the studies suffe

r from signific ant, admitted flaws in

methodology.” Brown v. Entm’t Merchs., 131 S. Ct. at 2739 (quotation marks omitted).

The IOM admits that for negative outcomes from unintended pregnancy, “research is

limited.” 2011 IOM at 103. Th e IOM therefore cites its ow n 1995 report, which similarly

emphasizes the fundamental flaws in deter mining which pregnancies are “unintende d,” and “whether the effect is caused by or merely associated with unwanted pregnancy.”15

The 1995 IOM admits that no causal link exists for most of its all eged factors. This

12 The Guttmacher Institute, “Facts on Contraceptive Use in the United States (June 2010),” available at http://www.guttmacher.org/pubs/fb_contr_use.html (last visited October 6, 2012). 13 Mosher WD and Jones J, “Use of contraception in the United States: 19 82–2008,” Vital a nd Health Statistics, 2010, Series 23, No. 29, at 14 and Table E, available at http://www.cdc.gov/NCHS/data/series/sr_23/sr23_029.pdf (last visited October 6, 2012). 14 R. Jones, J. Darroch and S.K. Henshaw “Contraceptive Use Among U.S. Women Having Abortions,” Perspectives on Se xual and Reproductive Health 34 (Nov/Dec 2002 ): 294–303 (Perspectives is a publication of the Guttmacher In stitute). The Ce nters for Di sease Control released a study this year showing that even among those most a risk for unintended pregnancy, only 13% cite cost as a reason for not using contraception. CDC, “Prepregnancy Contraceptive Use Among Teens with Unintended Pregnancies Resulting in Live Births — Pregnancy Risk Assessment Monitoring System (PRAMS), 2004– 2008,” Morbidity and Mortality Weekly Report 61(02);25-29 (Jan. 2 0, 2012), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/ mm6102a1.htm?s_cid= mm6102a1_e (last visited O ctober 6, 2012). 15 Institute of Me dicine, The Best Intentions (1995) (“1995 IOM”), available at http://books.nap.edu/openbook.php?record_id=4903&page=64 (last visited October 6, 2012).
30

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 41 of 58 PageID #: 321
makes sense, since t he intendedness or un intendedness of a pr egnancy cannot itself
physiologically change its health effect. T hus, a delay in seeking prenatal care upon
unintended pregnancy is “no longer statistically s ignificant” for women not alread y
disposed to delay or who hav e a “support network.” 16. The IOM ’s recital of possible
health consequences shows that the evidence is not compelling:
• The alleged increase in smoking and drin king drops significantly where studies control for other causes; while dat a on domestic violenc e and depression “provide little systematic asses sment” and merely “ suggest” association (not causation).17
• The alleged reduction in low birth weight and prematurity overlooks the fact that, like other cited factors, these are merely “associat ed” with, not caused by, unintended pregnancy (1995 IO M at 70; 2011 IOM at 103). S everal studies show no connection between it and pregnancy-spacing in the U.S.18 And several studies show that low birt h weight is associated not with contraception but with shorter pregnancy intervals, further distancing itself from a contraception connection. 2011 IOM at 103
• Evidence is not compelling that the Mandate against Grote would certainly cause pregnancy-prevention. In 48% of all un intended pregnancies, contraception was used.19 Multiple peer-reviewed studies de monstrate that there is no scholarly consensus that increased contracepti on use reduces either abortion (whic h occurs upon pregnancy) or sexually transmitted diseases.20
16 Id. at 68. 17 Id. at 69, 73, 75. 18 Id. at 70–71. 19 Finer, L. B., and S. K. Hensh aw, “Disparities in rates of unintended pregnancy in the Unite d States, 1994 and 2001,” 38(2) Perspectives on Sexual & R eprod. Health 90–96 (2006) available at http://www.guttmacher.org/pubs/journals/3809006.html (last visited October 6, 2012). 20 K. Edgardh, et al., “Adolescent Sexu al Health in Sweden,” Sexual Transmitted Infections 78 (2002): 352-6 (http://sti.bmjjournals.com/cgi/content/full/78/5/352); Sourafel Girma, David Paton, “The Impact of Emergency Birth Control on Teen Pregnancy and STIs,” Journal of Health Economic, (March 2011): 373380; A. Gla sier, “Emergency Contraception,” British Medical Journal (Sept 2006): 560-561; 37 J.L. Duenas, et al., “Trend s in the Use of Co ntraceptive Methods and Voluntary Interruption of Pregna ncy in the Spanish Population During 1997–2007,” Contraception (January 2011): 82-87
31

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 42 of 58 PageID #: 322

Notably, no evidence shows that the Mand ate is the only method to provide the
items in question. Grote sug gests that such evidence would not be possible, sinc e
government-provided abortifacients are just as free and effective as any other kind.
d. Defendants cannot show the Mandate is the least restrictive means of furthering their interests.

Even if a compelling interest existed, the government could not possibly show

that the Mandate against Grote is “the least restrictive means of furthering” it under 42

U.S.C. 2000bb-1. The fact that the government could subsidiz e contraception itself t o

give it to employees at exem pt entities, and that it already does so on a wide scale,

shows that the government fails RFRA’s

least restrictive means requirement.

Defendants bear the burden to s how both of these elements—comp elling interest and

least restrictive means—including at the preliminary injunction stage. O Centro Espirita,

546 U.S. at 428–30.

If the government “has open to it a less dr astic way of satisfying its legitimate

interests, it may not c hoose a [regulatory] scheme that broadly stifles the exercise of

fundamental personal liberties.” Anderson v. Celebr ezze, 460 U.S. 780, 806 (1983).

Strict scrutiny requires a “serious, good faith c onsideration of workable . . . alternatives

that will ac hieve” the alleged int erests. Grutter v. Bollinger , 539 U.S. 306, 339 (2003).

“[W]ithout some affirmative evidence that there is no le ss severe alternative,” the

Mandate cannot survive RFRA’s requirements. Johnson, 310 F.3d at 505.

Defendants fail the least restrictive means test because the government could, if

the political will existed, achieve its desire for free coverage of birth control by providing

that benefit itself. Rather than coerce Grote to prov ide contraception and abortifacient

32

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 43 of 58 PageID #: 323

coverage in their plan, the gov ernment could possibly create its own plan covering the

few items to which Grote objects, and then allow free enr ollment in that plan for

whomever the government seeks to cover.

Or the gover nment could directly

compensate providers of cont raception and abortifacients. Or the government could

offer tax credits or deductions for contrace ption and abortifacient purchases. Or the

government might impose a mandate on th

e contraception and abortifacient

manufacturing industry to give its items aw ay for free.21 These and other options could

fully achieve Defendants’ goal while being less restrictive of Grote’s beliefs. There is no

essential need to coerce Grote to provide the objectionable coverage itself.

Defendants cannot deny that the government could pursue its goal more directly.

This conclusion is not only dictated by com mon sense, but is als o proven because the

federal government and many s tates already directly subsid ize birth control coverage

for many citizens through Title XIX (Medica id) and T itle X (Family Planning Services)

funding, among others.22 Thus the Court’s RFRA inquiry could end here: the Mandate is

not the least restrictive means of furthering Defendants’ interest. Other options may be

more difficult to pass as a politic al matter (which further illustrates the public’s disb elief

that the Mandate’s inte rest is “compelling”). Indeed PPAC A itself does not require the

Mandate. 42 U.S.C. § 300gg-13(a)(4). But political di fficulty does not exonerate the

Mandate’s burdens on Grote’s re ligious beliefs, nor c an it allow the Mandate to pas s

21 By virtue of Defendants’ recent attempts to quell political backlash by claiming they may create an “accommodation” for some additional religious entities (but still not for Plai ntiffs), Defendants are necessarily admitting that the Mandate is not the least restrictive means to achieve their goals. See 77 Fed. Reg. 16501–08 (Mar. 21, 2012) 22 See Facts on Publicly Funded Contraceptive Services in the United States (Guttmacher Inst. May 2012) (citations omitted), available at http://www.guttmacher.org/pubs/fb_contraceptive_serv.html (last visited October 6, 2012).
33

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 44 of 58 PageID #: 324
RFRA’s strict scrutiny. The availability of many alternative methods fatally undermines Defendants’ burden under RFRA and the Mandate from applying to Grote.
The government cannot propose a watered- down least restrictive means test. RFRA requires the Mandate to be “the least rest rictive means,” not the least restrictive means among only what the governm ent wants to select. In Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988), the Supreme Court required alternative means in stead of fundamental rights vi olations. There, North Carolina sought to c urb fraud by requiring pr ofessional fundraisers to dis close during solicitations how much of the donation would go to them. 487 U.S. at 786. Applying strict scrutiny, the Supreme Court declared that the state’s interest could be achieved by publishing the same disclosures it self online, and by prosecuting fraud. Id. at 799–800. Although these alternatives would be costly, less directly effective, and a restructuring of the governmental scheme, strict scrutiny demanded th ey be prior itized. See id. Here RFRA similarly requires full consideration of other ways the gover nment can and doe s provide women free contracept ion and abortifacients. “The le sson” of RFRA’s pedigree of caselaw “is that the government must s how something more compelling than saving money.” Laycock at 224.
The government attempted in Newland to argue that it has an alleged need to impose the Mandate within the em ployer-based insurance market. But this argument fails the c ompelling interest/least restrictive means test because it redefines the government’s interest from securing health and equality to accomplishing those goals in a specific way . The government has zero evidenc e, much less compelling evidenc e, that it has a “paramount” and “grave” need to achieve its alleged health and equa lity
34

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 45 of 58 PageID #: 325
interests by coercion of Grote, instead of by providing contraception and abortifacients itself. The government does not even hav e a hi nt of evidenc e that its interests would not be served if the government itself provided the c ontraception and abortifacients it desires. In other words, the government cannot possibly show that even if all women in Grote’s plan received the Mandated items free fr om the government, they would still suffer adverse health consequences and an in ability to be free from work-interrupting pregnancy. “[T]he Government has not offe red evidence dem onstrating” compelling harm from an alternative that is availa ble and less restrictive of religion. O Centro, 546 U.S. at 435–37.
The Mandate substantially bur dens the re ligious exercise of Grote and its owners, and Defendants fail strict scrutiny. Therefore, Grote has a likelihood of success on its RFRA claim. B. THE MANDATE VIOLATES THE FREE EXERCISE CLAUSE.
In addition to violating RFRA, the Mandat e violates the Free Exercise Clause because it is not “neut ral and generally applicable.” Lukumi, 508 U.S. 20 at 545 (citing Smith, 494 U.S. at 880. The M andate is therefore subject to strict scrutiny, Lukumi, 508 U.S. at 546, which as discussed above, it cannot meet.23
The Mandate is not neutral on its face bec ause it explicitly discriminates among religious organizations on a religious basis. It thus fails the most basic requirement of
23 Neutrality and general applicability overlap and “failure to satisfy one re quirement is a li kely indication that the other has not been satisfied.” Lukumi, 508 U.S. at 531; see also id. (noting that “[n]eutrality and general applicability are interrelated”); id. at 55 7 (Scalia, J., concurring) (observing that t he concepts “substantially overlap”). Still, each merits separate analysis, and “strict scrutiny will be triggered” if the law at issue “fails to meet either requirement.” Rader v. Johnston, 924 F. Supp. 1540, 1551 (D. Neb. 1 996) (emphasis supplied) (citing Lukumi, 508 U.S. at 531-33, 544-46).
35

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 46 of 58 PageID #: 326
facial neutrality. See, e.g., Lukumi , 508 U. S. at 533 (explaining that “the minimum requirement of neutrality is that a law not discriminate on its face”). Indeed, the Mandate is a more patent vi olation of neutrality than the ordinances unanimously struck down in Lukumi. That case involved ostensibly neutral animal cruelty laws structured to target religiously-motivated practices only. By contrast, on its face the religiou s employer exemption to the mandate div ides religious objectors into favored and disfavored classes, forgetting Lukumi’s warning that “[a] law la cks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.” Lukumi, 508 U.S. at 533 (emphasis added).
The religious employ er exemption protects the consciences only of certain religious bodies, which it defines with reference to their internal religious characteristics. Namely, it exempts only thos e organizations whos e “purpose” is to inculcate religiou s values; who “primarily” employ and serve co-religionists; and who qualify as churches or religious orders under the tax code. See 45 C.F.R. § 147.130(a)(iv)(B)(1)–(4). Thes e criteria openly do what Lukumi says a neutral law cannot do: refer to religious qualities without any discernible secular reason. Lukumi, 508 U.S. at 533. There is no conceivable secular purpose, for instance, in limiting conscience protection to religious groups that “primarily serve” co-religionist s while denying it to those who serve persons regardless of their faith. These criteria practice religious “discriminat[ion] on [their] face” and therefore trigger strict scrutiny. Lukumi, 508 U.S. at 533.
The Mandate is also subject to strict scrutiny under the Fr ee Exercise Clause because it is not generally applicable. A law is not generally applicable if it regulate s religiously-motivated conduct, yet leaves unregulated similar s ecular conduct. See,
36

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 47 of 58 PageID #: 327

e.g., Lukumi, 508 U.S. at 544–45. As explained above, the Mandate here exempts 191

million Americans on a variety of grounds, including “most” large employers like Grote,

but refuses to exempt Grote based on its religious objections. In Fraternal Order of

Police, the Third Circuit held t hat a po lice department’s no-beard policy was not

generally applicable because it allowed a medical exemptio n but refused religious

exemptions. “[T]he medical exemption raises concern because it indicat es that the

[police department] has made a va lue judgment that secular (i.e., medical) motivations

for wearing a beard ar e important enough to overcome its gener al interest in uniformity

but that religious motivations are not.” 170 F.3d at 366 (Alito, J.). See also Blackhawk v.

Pennsylvania, 381 F.3d 202, 210–11, 214 (3d Cir. 2004) (Alito, J.) (rule against religious

bear-keeping violated Free Exercise Clause due to categorical exemptions for zoos and

circuses); Canyon Ferry Road Baptist Church of East Helena, Inc. v. Un sworth, 556

F.3d 1021, 1035 (9th Cir. 2009) (Noonan,

J., concurring) (campaign financ e

requirements were not generally applicable where they included categorical exemptions

for newspapers and media, but not for churches); Mitchell County. v. Zimmerman, 810

N.W.2d 1, 16 (Iowa 2012) (c ategorical exemptions for secular conduct allowed

Mennonite farmers to use steel-wheeled tractors on county roads).

The religious exemption from the Mandate in particular is not generally applicable

because PPACA itself awards Defendants unlimited discret ion to shape its scope.

Defendants “may establish exemptions,” 45 C.F. R. § 147.130 (emphasis added), and

pursuant to 42 U.S.C. § 300gg-13 Defendants’ dis cretion to craft its exemptions is

unlimited. 76 Fed. Reg. at 46623 (ass erting that § 300gg-13 grants HHS/HRSA

“authority to develop comprehen sive guideless” under whic h Defendants believe “it is

37

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 48 of 58 PageID #: 328
appropriate that HRSA, in issuing these Guidelines, takes into account the effect on the religious beliefs of certain religious empl oyers”) Using their unfettered assessments, Defendants continue to change their exem ptions and accommodations. This is evidenced by two different versions of a “safe harbor” they issued in addition to the religious exemption itself, and the fact that in recent rulemaking, yet another category of non-profit religious entities subject to different treatment t han the Mandate will be created, 77 Fed. Reg. 16501. This built -in discretion means that Defendants hav e broad discretion to create exemptions based on an “individualized … assessment of the reasons for the relevant conduct,” a feat ure that deprives the Mandate of general applicability and subj ects it to strict scrutiny. Lukumi, 508 U.S. at 537 (quoting Smith, 494 U.S. at 884). C. THE MANDATE VIOLATES THE ESTABLISHMENT CLAUSE.
The Mandate also violates the Establishm ent Clause of the First Amendment. The Mandate’s “religious employer” exem ption, as discussed above, sets forth Defendants’ notion of what “c ounts” as religion and what doesn’t for the purposes of who will be exempt under the Mandate. But the government may not adopt a caste system of different religious or ganizations and belie f-levels when it imposes a burden. Instead it “must treat i ndividual religions and religious institutions ‘without discrimination or preference.’” Colo. Christian U. v. Weaver , 534 F.3d 1245, 1257 (10th Cir. 2008); Larson v. Valente, 456 U.S. 228 (1982); see also Wilson v. NLRB , 920 F.2d 1282 (6t h Cir. 1990) (holding that sect ion 19 of the Nationa l Labor Relations Act, which exempts from mandatory union membership any employee who “is a member of and adheres to established and traditional tenets or teaching s of a bona fide religion, body, or sect
38

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 49 of 58 PageID #: 329
which has historically held c onscientious objections to jo ining or financially s upporting labor organizations,” is unc onstitutional because it discriminates among religions and would involve an impermissible governmen t inquiry into religious tenets), cert. denied, 505 U.S. 1218 (1992). The Mandate’s religious exemption deems organizations insufficiently “religious” if they do not focus on co-religionists in hiring and service, which would involve the government’s probing of what exa ctly count as the organization’s religious “tenets.” D. THE MANDATE VIOLATES THE FREE SPEECH CLAUSE.
The Mandate additionally v iolates the First Amendment by coercing Grote to provide for speech that is contrary to its and its owners’ religious beliefs. The “right to speak and the right to refrain from s peaking are complementary components of the broader concept of ‘individual freedom of mind.’” Wooley v. Maynard, 430 U.S. 705, 714 (1977) (quoting W.V. State Bd. of Educ. v. Barnette , 319 U.S. 624, 637 (1943)). Accordingly, the First Amendment protects t he right to “decide wh at not to say.” Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston , 515 U. S. 557, 573 (1995) (internal quotation marks omitted).
The Mandate compels expressiv e speech. It requires Grote to cover “education and counseling” in favor of abortifacients. E ducation and counseling are, by definition, speech. As a self-insurer, Grote is requi red to pay for this speech directly. The Supreme Court has explained that its compelled speech jurisprudence is triggered when the government forces a speaker to fund objectionable speech. See, e.g, Abood v . Detroit Bd. of Ed. , 431 U.S. 209, 234–35 ( 1977) (forced contributions for union po litical speech); United States v. United Foods , 533 U.S. 405, 411 (2001) (forced contribution s
39

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 50 of 58 PageID #: 330
for advertising). The Supreme Court recently reaffirmed that “compulsory s ubsidies for private speech” violate the First Amendm ent unless they involv e a “mandated association” that meets t he compelling interest / leas t restrictive means test. Knox v. Service Employees Intern. Union, 132 S. Ct. 2277, 2289 (June 21, 2012). Here there is no “mandated association” because the governm ent omits many employ ers from the Mandate, and the Mandate violates the compelling interest test. E. THE MANDATE VIOLATES THE DUE PROCESS CLAUSE.
The Mandate violates the rights of Gr ote and its owners under the Due Pr ocess Clause of the Fifth Amendment. As referenc ed in the Free Exer cise Clause argument, the Mandate creates a standardless, blank check for Defendants to discriminatorily select whatever they want t o call “re ligious” and offer or withhold whatever accommodations they choose. That is exactly what Defendants have done. When a law is so “standardless that it authorizes or encourages seriously disc riminatory enforcement,” the law does not comport with due process. United States v. Willia ms, 553 U.S. 285, 304 (2008); see also F.C.C. v. Fox Television Stations, Inc. , 132 S. Ct. 2307, 2317 (2012). If a law is so vague that it “fails to provide a person of ordinary intelligence fair notice of w hat is prohibited,” it fails to provide constitutional due process. Williams, 553 U.S. at 304.
42 U.S.C. § 300gg-13 gives Defendants unlimited discretion to pick and choose what religious groups to impose its Mandate against, and to w hat extent. 76 Fed. Reg. at 46623 The statute literally contains no st andards regarding these decis ions; it offers zero guidance, not even key words or phrases, about who counts as religious and what kind of ac commodation such r eligious persons or entities should be provided. No
40

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 51 of 58 PageID #: 331

person can read § 300gg-13 and have any not ion of whom Defendants may impos e

their Mandate against, and to what extent.

Section 300gg-13 is therefore a quintessential law so “standardless that it

authorizes or encourages seriously discrim inatory enforcement.” Defendants could

literally decide that Buddhists get exemptions while Si khs do not, without running afoul

of the standards of that se ction, because the section has no standards. The law

practically invites discriminatory enforcement, and that is exactly what Defendants have

done with it. Defendants have used their discret ion to create: an arbitrary four-part

“religious employer” exemption; two differe nt “safe harbors” of non-enforcement; and a

proposed “accommodation” for some non-exempt entities yet to be determined in new

rulemaking, 77 Fed. Reg. 16501. Grote

has suffered exclusion from all these

discretionary decisions. These discrimi natory decisions inv olve the government

deciding who the religious are and what religion is; what le vels of moral participation

should be acceptable to conscience; whose re ligion gets put i nto different levels of

accommodation; and who is allowed to c onvert to religi ous views against birth control

based on whether they did so by an arbitrary deadline.

F. THE MANDATE VIOLATES THE ADMINISTRATIVE PROCEDURE ACT. Defendants finalized the Mandate while tr ansparently, even admittedly, refusing

to satisfy their statutory duty to actua lly “consider” objections issued during the

comment period. Section 706 of the APA provi des that courts “sh all hold unlawful and

set aside agency action, findings, and conc lusions found to be without observance o f

procedure required by law.” 5 U.S.C. § 706(2)(D). Defendants must follow the

procedure found in § 553, whic h requires administrative agencies to: (1) publish notice

41

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 52 of 58 PageID #: 332
of proposed rulemaking in the Federal Regi ster; (2) “give interested parties a n
opportunity to participate in the rule making through submission of written data, views,
or arguments”; and (3) consider all relevant matter presented before adopting a final
rule that includes a statement of its basis and purpose. 5 U.S.C. § 553(b) & (c).
“An agency is required to provide a mean ingful opportunity for comments, which
means that the agency’s mind must be open to considering them.” Grand Canyon Air
Tour Coalition v. F.A.A. , 154 F.3d 455, 468 (D.C. Cir. 1998) (citing McLouth Steel
Products Corporation v. Thomas, 838 F.2d 1317, 1323 (D.C. Cir. 1988)); Cf. Northwest Tissue Center v. Shalala, 1 F.3d 522, 531 (7th Cir. 1993) (“An agency should not be able
to avoid the notice-and-comment process with fancy interpretive footwork.”). The Court
need not engage in any subjec tive judgment about whether Defendants provided due
consideration to objections to the Mandate. In this c ase Defendants essentially admit
that they did not do so. Central to this im plicit concession are facts acknowled ged by
Defendants themselves:
(1) PPACA prohibits the Mandate from going into effect until one year after it is in final, unchanged form. 75 Fed. Reg. at 41726; 76 Fed. Reg. at 46624.
(2) Defendants themselves insisted, in August 2011, prior to the comment period, that they believ ed the Mandate must exist in final form unchanged from as it was written on August 1, 2011, in order to deliver Mandated items to college women by August 2012. 76 Fed. Reg. 46621–26.
(3) Defendants delivered on their promise to ignore comments by finalizing their rule “without change” in February 2012. 77 Fed. Reg. 8725–30
(4) Due to public out cry Defendants then admitted in a new regulatory process in March 2012, 77 Fed. Reg. 16501, that the same objections offered in the 2011 comment period actually did require alterations that they had refused to consider in 2011 but would now pursue.
42

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 53 of 58 PageID #: 333
(5) Yet Defendants continue to impos e their Mandate on Grote and other s as if their rule had act ually been finalized in August 2011 in a process that meaningfully considered suggested changes prior to finalization.
If Defendants had not been clos e-minded about their Mandate, it wo uld not have been finalized without change in Febr uary 2012, and would still not be finaliz ed (because the March 2012 process continues indefinitely). Thus if t he government had complied with the APA, Grote would not be subject to it now; instead Grote would be more than a year away from its effect.
Defendants’ mockery of the noti ce and co mment process has led to palpable injury to Grote. The Mandate’s adoption of HRSA’s preventive services guidelines against religious objectors should be vacated and rem anded to the Defendant agencies until they actually finalize a Mandat e after meaningful c onsideration, and then wait an additional year to impose it.
The Mandate also violates the APA for bein g “contrary to law” and “constitutiona l right” under 5 U.S.C. § 706(2)(A) & (B). See Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–17 (1971). It is contrary to l aw and constitutional right for all the reasons stated above: it s violation of RF RA, the First Amendment clauses, and the Due Process Clause. II. GROTE WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF
PRELIMINARY RELIEF. Granting preliminary injunctive relief is necessary to prevent Grote from suffering harm that is irreparable and imminent. Applic ation of the mandat e to Grote will v iolate its rights under the First Amendment and RFRA. It is settled that “[t]he loss of First Amendment freedoms, for even minimal peri ods of time, unquestionably c onstitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 ( 1976); accord ACLU v. Alvarez,
43

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 54 of 58 PageID #: 334
679 F.3d 583, 589 (7 th Cir. 2012). Deprivation of rights secur ed by RF RA—which affords even greater protection to religio us freedom than the Free Exercis e Clause— also constitutes irreparable har m. See, e.g., Kikumura v. Hurley , 242 F.3d 950, 963 (10th Cir. 2001) (noting that “c ourts have held that a plainti ff satisfies the irreparable harm analysis by alleging a violation of RFRA”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (explaining under RF RA that “although the plaintiff' s free exercis e claim is statutory rather than constitutional, the denial of the plaintiff's right to the free exercise of his religious beliefs is a harm that cannot be adequately compensated monetarily”); W. Presbyterian Church v. Bd. of Zoning Adjustment of Dist. of Columbia, 849 F. Supp. 77, 79 (D.D.C. 1994) (granting a preliminary in junction against a zoning ordinanc e prohibiting a church’s feeding of the homeless based on likely violations of the First Amendment and RFRA). The District Court in Colorado reached the same conclus ion in the Newland case. See Newland, 2012 WL 3069154 at *4 (noting “it is wellestablished that the potential violation of Plaintiffs’ c onstitutional and RFRA rights threatens irreparable harm”) (citation omitted).
Finally, these irreparable harms apply to Grote already. Grote does not qualify for any of Defendants ’ exemptions or non-enforcement. Grot e is therefore subject to the Mandate with its next poli cy year, which begins January 1, 2013. The process for obtaining and finalizing coverage is likely to take several weeks. However, the religious beliefs of the Grote F amily prohibit them from complying with the Mandate. Thus Grote faces an imminent likelihood of lawsuits from the Secretary of Labor, fines and regulatory penalties. The imminent risk of harm and the need fo r clarification of Grote’s
44

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 55 of 58 PageID #: 335
rights in time to secure appropriate in surance coverage means Grote will suffer irreparable harm in the absence of injunctive relief. III. THE BALANCE OF EQUITIES TIPS IN GROTE’S FAVOR.
Here, the balance of equities overwhelmingly favors Grote. Granting preliminary injunctive relief will merely prevent Defendants from enforcing the Mandate against one religious entity. This will simply preserve the status quo between the parties, counseling in favor of granting preliminary relief. Defendants have already exempted a number of churches and churc h-related entities fr om the mandate. Even more notably, Defendants have granted what near ly amounts to its own voluntary “injunction” by granting delayed enforcement of the Ma ndate against a broad array of religiou s organizations until their first plan years start after A ugust 2013. HHS Bulletin, supra note 1. Omission of Grote from that “safe harbor” is arbitrary and unwarranted in the first place. Defendants cannot possibl y show that applying the M andate to one entity would “substantially injure” others’ interests.
Balanced against this de minimis injury to Defendants is the real and immed iate threat to Grote’s and its owner s’ integrity of religious be lief. Grote faces the imminent prospect of penalties that Def endants obstinately declare they intend to apply . In sum, any minimal harm in not apply ing the Mandate against one additional entity, in light of Defendants’ willingness to not enforce it against thousands of others, “pales in comparison to the possible infr ingement upon Plaintiffs’ constitutional an d statutory rights.” Newland, 2012 WL 3069154 at *4.
45

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 56 of 58 PageID #: 336

IV. AN INJUNCTION IS IN THE PUBLIC INTEREST.

Finally, a preliminary injunction will serve the public inte rest by protecting Grote’s

First Amendment and RFRA rights. The public can have no interest in enforcement of a

regulation against a business that coerces it to violate its own faith. See, e.g., Newland,

2012 WL 3069154 at *5 (finding “‘ther e is a strong public interest in the free exercis e of

religion even where that interest may conflict with [another statutory scheme]’”) (quoting

O Centro Espirita Beneficient e Uniao do Vegetal v. Ashcroft , 389 F.3d 973, 975 (10th

Cir. 2004) (en banc), aff’d and r emanded, O Centro, 546 U.S. 418). Furthermore, any

interest of Defendants in uniform applicat ion of the mandate “is … undermined by the

creation of exemptions for certain reli gious organizations and employers with

grandfathered health insurance plans and a temporary enforcement safe harbor for non-

profit organizations.” Newland, 2012 WL 3069154 at *4.

CONCLUSION

Grote asks the Court to enter a prelim inary injunction against the HHS man date

in accordance with its accompanying motion and proposed order. Respectfully submitted this 30th day of October, 2012.

Attorneys for Plaintiffs:

s/Michael J. Cork

Michael A. Wilkins

Michael J. Cork

Of Counsel

Bamberger Foreman Oswald & Hahn, LLP

Broyles Kight & Ricafort, PC 201 N. Illinois St., Suite 1225

8250 Haverstick Road, Suite 100 Indianapolis, IN 46204-4219

Indianapolis, IN 46240

(317) 464-1594

317-428-4527 Direct

(317) 464-1592 (Fax)

317-571-3610 Fax

mcork@bamberger.com

mwilkins@bkrlaw.com

Bryan Beauman (Admission pro hac vice motion forthcoming) Alliance Defending Freedom
46

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 57 of 58 PageID #: 337
P.O. Box 779 Paris, KY 40362-0779 (859) 340-1127 bbeauman@alliancedefendingfreedom.com
Matthew S. Bowman (Admission pro hac vice motion forthcoming) Alliance Defending Freedom 801 G Street NW, Suite 509 Washington, D.C. 20001 (202) 393-8690 (202) 237-3622 (facsimile) mbowman@alliancedefendingfreedom.org
CERTIFICATE OF SERVICE
I hereby certify that on October 30, 2012, a copy of the foregoing Brief in Support of Motion for Preliminary Injuncti on was filed electronically. Serv ice of this filing will be made on all ECF-registered counsel by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.
I further certify that on October 30, 2012, a copy of the foregoing Brief in Support of Motion for Preliminary Injunction was mailed, by first-class U.S. Mail, postage prepaid and properly addressed to the following:
Timothy Geithner in his official capacity as Secretary of the U.S. Dep't. of the Treasury 1500 Pennsylvania Avenue, N.W. Washington, DC 20220
Kathleen Sebelius in her official capacity as Secretary of the U.S. Department of Health and Human Services 200 Independence Avenue, S.W. Washington, DC 20201
Hilda Solis in her offiicial capacity as Secretary of the U. S. Dep't. of Labor Frances Perkins Bldg. 200 Constitution Avenue, N.W. Washington, DC 20201
47

Case 4:12-cv-00134-SEB-DML Document 28 Filed 11/27/12 Page 58 of 58 PageID #: 338 U. S. Dep't. of Health and Human Services 200 Independence Avenue, S.W. Washington, DC 20201 U. S. Dep't. of Labor Frances Perkins Bldg. 200 Constitution Avenue, N.W. Washington, DC 20201 U. S. Dep't. of the Treasury 1500 Pennsylvania Avenue, N.W. Washington, DC 20220 s/ Michael J. Cork Michael J. Cork
48

 
 United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604

January 30, 2013*

Before

JOEL M. FLAUM, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 13‐1077

WILLIAM D. GROTE, III, et al., Plaintiffs‐Appellants,
v.
KATHLEEN SEBELIUS, in her official capacity as the Secretary of the United States Department of Health and Human Services, et al.,
Defendants‐Appellees.

Appeal from the United States District Court for the Southern District of Indiana.
No. 4:12‐cv‐00134‐SEB‐DML
Sarah Evans Barker, Judge.

O R D E R

The following are before the court:

1. PLAINTIFFS‐APPELLANTS’ MOTION FOR AN INJUNCTION PENDING APPEAL, filed on January 11, 2013, by counsel for the appellants.

2. OPPOSITION TO PLAINTIFFS’ MOTION FOR AN INJUNCTION PENDING APPEAL, filed on January 17, 2013, by counsel for the appellees.

* This order is being released in typescript. It will be published; a printed version will follow.

No. 13‐1077

Page 2

3. PLAINTIFFS‐APPELLANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR AN INJUNCTION PENDING APPEAL, filed January 24, 2013, by counsel for the appellants.

Members of the Grote Family and their company, Grote Industries, appeal the district court’s order denying their motion for a preliminary injunction against the enforcement of provisions of the Patient Protection and Affordable Care Act (“ACA”) and related regulations that require Grote Industries to provide coverage for contraception and sterilization procedures in its group health‐insurance plan.1 They have moved for an injunction pending appeal. See FED. R. APP. P. 8. We recently granted such an injunction in a similar case. See Korte v. Sebelius, No. 12‐3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012). As explained below, this case is materially indistinguishable. Accordingly, we consolidate this case with Korte and likewise grant the motion here.

The Grote Family owns Grote Industries, a privately held, family‐run business headquartered in Madison, Indiana. Grote Industries manufactures vehicle safety systems. The company has 1,148 full‐time employees working at various locations and provides a group health‐insurance plan for the benefit of its employees. The plan is self‐insured and renews every year on January 1.

The members of the Grote Family are Catholic and operate their business in accordance with the precepts of their faith, including the Catholic Church’s teachings regarding the moral wrongfulness of abortifacient drugs, contraception, and sterilization. Consistent with the Grote Family’s religious commitments, before January 1, 2013, the Grote Industries health‐insurance plan did not cover abortifacient drugs, contraception, or sterilization.

The ACA and accompanying regulations mandate that the Grote Industries health‐ insurance plan provide no‐cost coverage for all FDA‐approved contraceptives, sterilization procedures, and related services. In brief, the regulatory framework imposing this mandate is as follows: The ACA requires nongrandfathered and nonexempt group health‐insurance plans to cover certain preventive health services without cost‐sharing, see 42 U.S.C. § 300gg‐13(a)(4), and regulations promulgated by the United States Department of Health

1 The individual plaintiffs are William D. Grote, III; William Dominic Grote, IV; Walter F. Grote, Jr.; Michael R. Grote; W. Frederick Grote, III; and John R. Grote. For ease of reference, we refer to them collectively as the Grote Family. Grote Industries consists of two companies formed under the laws of Indiana: Grote Industries, LLC, and Grote Industries, Inc. The Grote Family, including members not listed as plaintiffs, fully own Grote Industries, Inc. This entity, in turn, serves as the managing member of Grote Industries, LLC.

No. 13‐1077

Page 3

and Human Services (“HHS”) specify that the required coverage must include all FDA‐ approved contraceptive methods and sterilization procedures, see 77 Fed. Reg. 8725 (Feb. 15, 2012) (“the contraception mandate” or “the mandate”). This includes oral contraceptives with possible abortifacient effect (including emergency contraception such as the “morning‐ after pill”) and intrauterine devices. See id.; OFFICE OF WOMEN’S HEALTH, FOOD & DRUG ADMIN., BIRTH CONTROL GUIDE 10‐12, 16‐20 (2012), http://www.fda.gov/ downloads/ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014.pdf.

The contraception mandate takes effect starting in the first plan year after August 1, 2012. See 77 Fed. Reg. at 8725‐26. Because the Grote Industries health‐insurance plan renews on January 1 of each year, the mandate required the company to begin covering oral contraception, sterilization procedures, intrauterine devices, and emergency contraception when the plan renewed on January 1, 2013. The mandate is backed by heavy financial penalties; employers who do not comply face enforcement actions, see 29 U.S.C. § 1132(a); a penalty of $100 per day per employee, see 26 U.S.C. § 4980D(a)‐(b); and an annual tax surcharge of $2,000 per employee, see id. § 4980H.

The Grote Family and Grote Industries filed suit on October 29, 2012, seeking declaratory and injunctive relief blocking the enforcement of the contraception mandate against them. They assert constitutional claims under the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, and the Due Process Clause of the Fifth Amendment, as well as claims alleging violations of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to 2000bb‐4, and the Administrative Procedure Act, 5 U.S.C. § 706. They moved for a preliminary injunction; the district court denied the motion on December 27, 2012.

The following day we issued our order in Korte granting the motion for an injunction pending appeal, 2012 WL 6757353, at *1, prompting the Grote Family and Grote Industries to request reconsideration in the district court. On January 3, 2013, the district court, aware of our decision in Korte, denied the motion for reconsideration. The court acknowledged the similarities between Korte and this case but declined to follow our order in Korte, emphasizing that it was not a precedential ruling on the merits. This appeal followed. See 28 U.S.C. § 1292(a)(1). As in Korte, the Grote Family and Grote Industries moved for an injunction pending appeal,2 relying for present purposes solely on their RFRA claim.3

2 We evaluate a motion for an injunction pending appeal using the same factors and “sliding scale” approach that govern an application for a preliminary injunction. See Cavel Int’l, Inc. v. Madigan, 500 F.3d 544, 547‐48 (7th Cir. 2007). The moving party must establish that it has “(1) no
(continued...)

No. 13‐1077

Page 4

There is no material distinction between the motion in this case and the one we addressed and granted in Korte. There, we considered the likelihood of success of a claim brought by a secular, for‐profit corporation owned and operated by a Catholic family in accordance with the teachings of the Catholic faith. Korte, 2012 WL 6757353, at *1. The Kortes, like the Grote Family here, sued for declaratory and injunctive relief in the form of an exemption from the requirements of the contraception mandate. The Kortes’ company, K & L Contractors, provided a group health‐insurance plan for its nonunion employees. In August 2012 the Kortes discovered that the plan included coverage for contraception and wanted to replace it with a plan that conforms to the requirements of their faith, but the contraception mandate prevented them from doing so. Id. They sued the HHS Secretary asserting (among other claims for relief) that the mandate violated their rights under RFRA. They moved for a preliminary injunction, but the district court denied the motion. The Kortes and their company (collectively, “the Kortes”) appealed. They asked us for an injunction pending appeal, and we granted the motion. Reserving plenary review for later in the appeal, we held that the Kortes had established a reasonable likelihood of success on their RFRA claim. Id. at *3‐4. We also held that the equitable balance tipped in favor of granting the injunction; the harm to the Kortes’ religious‐liberty rights outweighed the temporary harm to the government’s interest in providing greater access to cost‐free contraception and related services. Id. at *4‐5.

In all important respects, this case is identical to Korte; our analysis there applies with equal force here. If anything, the Grote Family and Grote Industries have a more compelling case for an injunction pending appeal. Unlike the health‐insurance plan at issue in Korte, the Grote Industries health plan is self‐insured and has never provided contraception coverage.

2(...continued) adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied and (2) some likelihood of success on the merits.” Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). Once the threshold requirements are met, the court weighs the equities, balancing each party’s likelihood of success against the potential harms. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the U.S., Inc., 549 F.3d 1079, 1100 (7th Cir. 2008). The more the balance of harms tips in favor of an injunction, the lighter the burden on the party seeking the injunction to demonstrate that it will ultimately prevail. Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992).
3 RFRA prohibits the federal government from imposing a “substantial[] burden [on] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government demonstrates that the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb‐1(a)‐(b).

No. 13‐1077

Page 5

Absent an injunction, the Grote Family and Grote Industries must now cover abortifacient drugs, contraception, and sterilization through the company’s self‐insured health plan. Thus, the only factual distinctions between the two cases actually strengthen the equities in favor of granting an injunction pending appeal.

And the legal analysis has not changed. The Grote Family and Grote Industries make essentially the same arguments as did the Kortes. They maintain that the legal duties imposed on them by the contraception mandate conflict with the religious duties required by their faith, and they cannot comply with both. The mandate, they contend, compels them to materially cooperate in a grave moral wrong contrary to the teachings of their church and levies severe financial penalties if they do not comply. In this way, they argue, the mandate substantially burdens their free‐exercise rights, triggering the strict‐scrutiny test codified in RFRA. As we noted in Korte, this “is an exacting standard, and the government bears the burden of satisfying it.” Id. at *2.

In response the government advances the same arguments as it did in Korte. To abbreviate, the government maintains that (1) a secular, for‐profit corporation cannot assert a claim under RFRA; (2) relatedly, the free‐exercise rights of the individual plaintiffs are not affected because their corporation is a separate legal entity; and (3) the mandate’s burden on their free‐exercise rights is too remote and attenuated to qualify as “substantial” under RFRA because the decision to use contraception benefits is made by third parties— individual employees, in consultation with their medical providers. We addressed these arguments in our order in Korte, and nothing presented here requires us to reconsider that prior ruling. Here, as in Korte, the Grote Family’s use of the corporate form is not dispositive of the claim. See Korte, 2012 WL 6757353, at *3 (citing Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010)). And the government’s minimalist characterization of the burden continues to obscure the substance of the religious‐liberty violation asserted here. Id. The members of the Grote Family contend that their faith forbids them to facilitate access to contraception by paying for it, as the mandate requires them to do.

And as in Korte, the government has not, at this juncture, made an effort to satisfy strict scrutiny. In particular, it has not demonstrated that requiring religious objectors to provide cost‐free contraception coverage is the least restrictive means of increasing access to contraception. Although we again reserve plenary review of the merits for later in this appeal, for the reasons explained more thoroughly in our order in Korte, we conclude that the Grote Family and Grote Industries have established a reasonable likelihood of success on the merits of their RFRA claim. We also conclude that they will suffer irreparable harm absent an injunction pending appeal, and the balance of harms tips in their favor.

No. 13‐1077

Page 6

IT IS ORDERED that the motion for an injunction pending appeal is GRANTED. The defendants are enjoined pending resolution of this appeal from enforcing the contraception mandate against the Grote Family and Grote Industries.

IT IS FURTHER ORDERED that this case is consolidated with Korte. Oral argument will be scheduled by separate order when briefing has been completed.

ROVNER, Circuit Judge, dissenting. As a result of the court’s decision to consolidate this appeal with Korte v. Sebelius, No. 12‐3841, the Grote appellants’ request for an injunction pending appeal comes before the same panel that ordered preliminary relief in Korte. See Korte v. Sebelius, 2012 WL 6757353 (7th Cir. Dec. 28, 2012) (unpublished order). I recognize that the arguments in favor of preliminary relief in Grote are in some ways stronger than those in Korte (for example, the Grotes’ company was not already covering contraceptive care when the new federal mandate took effect, whereas the Kortes’ company was). Despite the differences between the two appeals, I am no more persuaded that preliminary injunctive relief is warranted in Grote than I was in Korte. Specifically, the appellants have not, in my view, shown that they are reasonably likely to prevail on the merits of their claims. See Cavel Int’l, Inc. v. Madigan, 500 F.3d 544, 547‐48 (7th Cir. 2007). With the benefit of the memoranda submitted by the parties in Grote and additional time to contemplate some of the issues presented by these appeals, I write separately here to expand on the doubts I expressed in Korte.
Of the multiple theories of relief that the Grote plaintiffs have so far articulated in this litigation (and which were given thorough treatment in the district court’s orders below), the only one invoked in this court as a basis for preliminary relief pending appeal is their claim under the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. (“RFRA”). Among other elements, that claim requires a showing that the regulatory mandate to provide contraceptive coverage, issued pursuant to the Patient Protection and Affordable Care Act, see 42 U.S.C. § 300gg–13(a)(4) (“Affordable Care Act”); 77 Fed. Reg. 8725 (Feb. 15, 2012), substantially burdens the plaintiffs’ exercise of religion. § 2000bb‐1(a), (b). A substantial burden is “one that necessarily bears a direct, primary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable.” Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (construing Religious Land Use and Institutionalized Persons Act , 42 U.S.C. §§ 2000cc et seq. (“RLUIPA”)); see Vision Church v. Village of Long Grove, 468 F.3d 975, 997 (7th Cir. 2006) (RLUIPA) (“Similarly, interpreting the First Amendment, the Supreme Court has found a ‘substantial burden’ to exist when the

No. 13‐1077

Page 7

government puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’”) (quoting Hobbie v. Unemployment Appeals Commʹn of Florida, 480 U.S. 136, 141, 107 S. Ct. 1046, 1049 (1987)); see also Nelson v. Miller, 570 F.3d 868, 878 (7th Cir. 2009) (RLUIPA and First Amendment); Koger v. Bryan, 523 F.3d 789, 799 (7th Cir. 2008) (RLUIPA). Like Judge Barker, I am not persuaded that the plaintiffs have made that showing.

I begin my analysis with a threshold point: on the record before us, it is only the Grotes, and not the corporate entities, which can claim to have a right to exercise religious freedoms. Grote Industries (by which I mean to include both Grote Industries, LLC and Grote Industries, Inc.) is a secular, for‐profit business engaged in the manufacture of vehicle safety systems. So far as the limited record before us reveals, it has stated no religious goals as part of its mission, it does not select its employees, vendors, or customers on the basis of their religious beliefs, and it does not require its employees to conform their behavior to any particular religious precepts. As such, I cannot imagine that the company, as distinct from the Grotes, has any religious interests or rights to assert here. To be sure, a secular corporation does have some types of First Amendment rights: it has the right to engage in commercial speech in the promotion of its products, for example, see generally Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 100 S. Ct. 2343 (1980), and in pursuit of its interests as a corporate citizen, it has the right to articulate what government policies it supports or opposes and to contribute money to political campaigns in pursuit of its commercial agenda, see Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S. Ct. 876 (2010). Moreover, there do exist some corporate entities which are organized expressly to pursue religious ends, and I think it fair to assume that such entities may have cognizable religious liberties independent of the people who animate them, even if they are profit‐ seeking. See, e.g., Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323, at *6‐*7 (D.D.C. Nov. 16, 2012) (for‐profit publisher of Christian texts, owned by not‐for‐profit religious foundation and related trusts which directed publisher’s profits to religious charity and educational work); see also Corp. of Presiding Bishop of Church of Jesus Christ of Latter‐day Saints v. Amos, 483 U.S. 327, 345 n.6, 107 S. Ct. 2862, 2873 (1987) (Brennan, J., concurring in the judgment) (“it is . . . conceivable that some for‐profit activities could have a religious character”).1 Indeed, there is a regulatory exemption from the contraception mandate for

1 Compare E.E.O.C. v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 619 (9th Cir. 1988) (finding manufacturer of mining equipment to be a primarily secular company and therefore not a religious organization exempt from Title VII, despite, inter alia, religious beliefs of owners, company’s financial support for religious missions, company’s inclusion of religious tracts in company’s outgoing mail and printing of Bible verses on its commercial documents, and weekly devotional services at workplace, where company was organized for profit, produced a secular product, was not affiliated with or supported by a church, and did not mention religious purpose in articles of
(continued...)

No. 13‐1077

Page 8

religious employers. 45 C.F.R. § 147.130(a)(1)(iv)(B). But it appears to be common ground among the parties that Grote Industries does not meet the criteria for such an employer. So far as it appears, the mission of Grote Industries, like that of any other for‐profit, secular business, is to make money in the commercial sphere. In short, the only religious freedoms at issue in this appeal are those of the Grotes, not the companies they own. See Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012) (“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 other 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 [First Natʹl Bank of Boston v. Bellotti, 435 U.S. 765, 778 n. 14, 98 S. Ct. 1407, 1416 n.14 (1978)] which is not the province of a general business corporation.”).

This brings me back to a point that I made in Korte, namely that it is the corporation, rather than its owners, which is obligated to provide the contraceptive coverage to which the owners are objecting. Korte v. Sebelius, 2012 WL 6757353, at *5 (Rovner, J., dissenting). Grote Industries is a closely‐held, family‐owned firm, and I suspect there is a natural inclination for the owners of such companies to elide the distinction between themselves and the companies they own.2 But there is a distinction, and it matters in important respects. See Korte v. U.S. Dep’t of Health & Human Servs., 2012 WL 6553996, at *9 (S.D. Ill. Dec. 14, 2012) (“business forms and so‐called ‘legal fictions’ cannot be entirely ignored” in assessing the relationship between corporate entity and owners for purposes of RFRA). Both Grote Industries, Inc., and its subsidiary, Grote Industries, LLC, have legal identities that are separate from those of the Grotes. “[I]ncorporationʹs basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163, 121 S. Ct. 2087, 2091 (2001). Although the corporations’ income flows to the Grotes, the corporate form significantly limits the Grotes’ liability; the corporations, unlike

1(...continued) incorporation) with LeBoon v. Lancaster Jewish Community Center Ass’n, 503 F.3d 217, 227‐28 (3d Cir. 2007) (finding community center to be exempt from Title VII as religious organization in view of, inter alia, its not‐for‐profit nature, recognition in articles of incorporation and bylaws that its purpose was to “enhance and promote Jewish identity, life, and continuity,” presentation of Judaic programming, advisory role of rabbis in center’s management, and center’s close ties with, and receipt of financial support from, local synagogues).
2 Cf. Townley Eng’g & Mfg. Co., supra n.1, 859 F.2d at 620 (owners of corporation argued that “Townley Company is an extension of the beliefs of Mr. and Mrs. Townley, and for all purposes, the beliefs of Mr. and Mrs. Townley are the beliefs and tenets of the Townley Company.”).

No. 13‐1077

Page 9

the Grotes, have potentially unlimited life spans; and ownership of the corporations may be transferred from the Grotes to others. More to the point, it is Grote Industries that employs over 1,100 people around the world, not the Grotes themselves; it is Grote Industries which, as the employer, sponsors a health care plan for the company’s employees; and it is that health plan which is now obligated by the Affordable Care Act and resulting regulations to include contraceptive coverage to the 464 employees who work in the United States. Indeed, as the government points out, the health plan itself is a distinct legal entity. See 29 U.S.C. § 1132(d)(1) (“An employee benefit plan may sue or be sued under this subchapter as an entity.”).3 It is worth adding that the Privacy Rule incorporated into the regulations promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) imposes a wall of confidentiality between an employee’s health care decisions (and the plan’s financial support for those decisions) and the employer. See 45 C.F.R. Parts 160 and 164; U.S. Dep’t of Health & Human Servs., Health Information Privacy, www.hhs.gov/ocr/privacy/hipaa/understanding/index.html (last visited Jan. 27, 2013).

I recognize that the Grote Industries health plan is self‐funded, so the additional level of separation provided by an insurance company, which was present in Korte, is missing here. See Tyndale House Publishers, 2012 WL 5817323, at *13 (finding this to be a “crucial distinction”). My fundamental point remains the same, however: the obligation to cover contraceptives falls not on the Grotes personally but on Grote Industries’ health care plan. Furthermore, the money used to fund that plan belongs to the company, not to the Grotes. The owners of an LLC or corporation, even a closely‐held one, have an obligation to respect the corporate form, on pain of losing the benefits of that form should they fail to do so. See, e.g., Wachovia Sec., LLC v. Banco Panamericano, Inc., 674 F.3d 743 (7th Cir. 2012); Laborers’ Pension Fund v. Lay‐Com, Inc., 580 F.3d 602 (7th Cir. 2009). The Grotes are not at liberty to treat the company’s bank accounts as their own; co‐mingling personal and corporate funds is a classic sign that a company owner is disregarding the corporate form and treating the business as his alter ego. See, e.g., Van Dorn Co. v. Future Chem. & Oil. Corp., 753 F.2d 565, 570 (7th Cir. 1985) (Illinois law); Aronson v. Price, 644 N.E.2d 864, 867 (Ind. 1994). So long as the business’s liabilities are not the Grotes’ liabilities – which is the primary and “invaluable privilege” conferred by the corporate form, Torco Oil Co. v. Innovative Thermal Corp., 763 F. Supp. 1445, 1451 (N.D. Ill. 1991) (Posner, J., sitting by designation) – neither are the business’s expenditures the Grotes’ own expenditures. To suggest, for purposes of the RFRA, that monies used to fund the Grote Industries health plan – including, in particular,

3 But see also Leister v. Dovetail, Inc., 546 F.3d 875, 879 (7th Cir. 2008) (noting that although “the plan is the logical and normally the only proper defendant” in a suit for benefits, “in cases . . . in which the plan has never been unambiguously identified as a distinct entity, we have permitted the plaintiff to name as defendant whatever entity or entities, individual or corporate, control the plan”).

No. 13‐1077

Page 10

any monies spent paying for employee contraceptive care – ought to be treated as monies from the Grotes’ own pockets would be to make an argument for piercing the corporate veil. I do not understand the Grotes to be making such an argument.

The Grotes consequently are, in both law and fact, separated by multiple steps from both the coverage that the company health plan provides and from the decisions that individual employees make in consultation with their physicians as to what covered services they will use. Any burden imposed on the Grotes individually by the contraception mandate is, as Judge Barker reasoned, “likely too remote and attenuated to be considered substantial” for purposes of the RFRA. Grote Indus., LLC v. Sebelius, 2012 WL 6725905, at *5 (S.D. Ind. Dec. 27, 2012) (citing O’Brien v. U.S. Dep’t of Health & Human Servs., 2012 WL 4481208, at *5 (E.D. Mo. Sept. 28, 2012) and Hobby Lobby, 870 F. Supp. 2d at 1294); see also Conestoga Wood Specialties Corp. v. Sebelius, 2013 WL 140110, at *14 (E.D. Pa. Jan. 11, 2013) (“whatever burden the Hahns may feel from being involved with a for‐profit corporation that provides health insurance that could possibly be used for contraceptives, that burden is simply too indirect to be considered substantial under the RFRA”).

I understand the Grotes’ concern – the closely‐held corporation of which they are controlling shareholders is funding a plan that must now cover contraceptive services, which are inconsistent with their Catholic beliefs. Although Grote Industries is not a religious employer, the Grotes aver, albeit without elaboration, that they seek to run the company in a manner that reflects their religious beliefs. Whatever else that may mean, I assume that it explains why, to date, Grote Industries’ self‐funded health plan has not included coverage for contraceptives. Requiring the company to include coverage for contraceptives forces the Grotes to operate the business in a way that deviates from the Catholic values that they otherwise endeavor as business owners to observe.

But in this respect the Grotes are no different from any number of business people who must, in compliance with a variety of statutory mandates, take actions that may be inconsistent with their individual religious convictions. The Grotes have voluntarily elected to engage in a large‐scale, secular, for‐profit enterprise. As the Supreme Court observed in United States v. Lee, “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” 455 U.S. 252, 261, 102 S. Ct. 1051, 1057 (1982) (declining to relieve Amish employer of obligation to pay Social Security taxes, despite acceptance of contention that both receipt and payment of Social Security benefits violates Amish faith); see also Braunfeld v. Brown, 366 U.S. 599, 605, 81 S. Ct. 1144, 1147 (1961) (statute that criminally proscribed sale of various retail goods on Sunday did not impermissibly interfere with free exercise rights of Jewish shopkeepers, although statute imposed extra cost on Jewish shopkeepers in

No. 13‐1077

Page 11

particular because their religious faith compelled them to close shops on Saturday: “the statute at bar does not make unlawful any religious practices of appellants; the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive”).

State nondiscrimination statutes, for example, may require a landlord to rent housing to an unmarried couple despite the landlord’s belief that cohabitation outside of marriage is a sin. See Thomas v. Anchorage Equal Rights Comm’n, 102 P.3d 937 (Alaska 2004) (declining to overrule Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska 1994)); Smith v. Fair Emp’t & Hous. Comm’n, 913 P.2d 909 (Cal. 1996); contra, Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass. 1994). They may obligate a church‐affiliated school – which could have sought the protection of a statutory exemption but had not – to retain a schoolteacher in its employ after she gives birth to a child, notwithstanding a religious belief that a woman with preschool‐aged children belongs in the home and not the workplace. See McLeod v. Providence Christian Sch., 408 N.W.2d 146 (Mich. App. 1987). They may forbid the evangelical owners of a closely‐held, for‐profit company from making hiring, promotion, and discharge decisions based on the marital status and religion of prospective and current employees, despite the owners’ belief that they must observe the teachings of God in the conduct of their business, including a Biblical mandate not to work with “unbelievers.” State by McClure v. Sports & Health Club, Inc., 370 N.W.2d 844 (Minn. 1985). They may require a photography business to photograph a same‐sex commitment ceremony, notwithstanding the owners’ belief that marriage is a sacred union between members of the opposite sex. See Elane Photography, LLC v. Willock, 284 P.3d 428 (N.M. App. 2012), cert. granted, 2012‐NMCERT‐8 (N.M. Aug. 16, 2012). They may oblige a medical practice to provide fertility services to a lesbian couple, notwithstanding the religious objections of one or more of its physicians to doing so. See N. Coast Women’s Care Med. Grp., Inc. v. San Diego Cnty. Superior Court, 189 P.3d 959 (Cal. 2008).4

In these ways and many others, a business owner complying with statutes of general application may be compelled to employ, transact business with, and otherwise provide

4 Some cases in this line do conclude that application of a nondiscrimination statute can meaningfully interfere with the religious liberties of a business owner. E.g., McClure, 370 N.W.2d at 852 (relying on state agency’s concession that statute abridged the business owners’ religious beliefs). However, the cases also consistently emphasize the importance of an owner’s voluntary decision to engage in commercial activity, whether as a reason why any burden imposed by such statutes on their religious beliefs and practices should be viewed as minimal, or as a reason why that burden, even if substantial, is outweighed by the State’s compelling interest in eradicating discrimination. Id. at 853; see also, e.g., Smith, 913 P.2d at 928‐29; Swanner, 874 P.2d at 283; Elane Photography, 284 P.3d at 443‐44.

No. 13‐1077

Page 12

goods, services, and benefits to people whose status, beliefs, or conduct are inconsistent with the owner’s religious beliefs and practices. In evaluating the burden that such requirements impose on a business owner’s religious liberties, one must distinguish between an owner’s commercial conduct and his religious beliefs and conduct. Requiring a secular business over the religious objection of its owner to do something in the commercial sphere that is required of nearly all such businesses ordinarily does not require the owner to abandon his religious tenets, to endorse conduct or express an opinion that is contrary to his religious beliefs, or to modify his private conduct as a religious observant. See Swanner, 874 P.2d at 283 (“It is important to note that any burden placed on Swannerʹs religion by the state and municipal interest in eliminating discrimination in housing falls on his conduct and not his beliefs. Here, the burden on his conduct affects his commercial activities.”); McClure, 370 N.W.2d at 853 (finding that the burden on business owners’ religious interests was justified by State’s interest in eradicating discrimination: “Sports and Health is not a religious corporation – it is a Minnesota business corporation engaged in business for profit. By engaging in this secular endeavor, appellants have passed over the line that affords them absolute freedom to exercise their religious beliefs.”).

The contraception mandate, as applied to Grote Industries, does not compel the Grotes to personally engage in or endorse conduct of which they disapprove on religious grounds: they need not use contraception, speak approvingly of it, or refrain from discouraging the use of contraception by others. See Conestoga Wood Specialties, 2013 WL 140110, at *14; Grote Indus., 2012 WL 6725905, at *5‐*6; O’Brien, 2012 WL 4481208, at *6. All that the mandate requires is that the Grote Industries health plan permit individual employees, in consultation with their physicians, to decide to use FDA‐approved contraceptives and pay for the use of those contraceptives. The Grotes know that their company’s health plan must cover contraception, and that one or more of their employees may decide to take advantage of that coverage, and that the health plan is therefore subsidizing a practice, by others, of which they disapprove.

To the extent this burdens the Grotes’ religious interests, it is worth considering whether the burden is different in kind from the burden of knowing that an employee might be using his or her Grote Industries paycheck (or money in a healthcare reimbursement account) to pay for contraception him or herself. See Conestoga Wood Specialties, 2013 WL 140110, at *13; Autocam Corp. v. Sebelius, 2012 WL 6845677, at *6 (W.D. Mich. Dec. 24, 2012). The likely response is that in the latter scenario, once a paycheck is handed over to the employee, the money is his or hers to use as desired, and any connection to the Grotes – and thus any burden on their religious interests – is severed. But consider that health insurance is an element of employee compensation. See 30 C.J.S. Employer‐Employee § 176 (Westlaw through 2012); Dana Shilling, LAWYERS DESK BOOK, Medical Insurance § 3.07 (2012); see also, e.g., Tatom v. Ameritech Corp., 305 F.3d 737, 739 (7th Cir. 2002); Doe v. Blue Cross & Blue Shield

No. 13‐1077

Page 13

United of Wis., 112 F.3d 869, 874 (7th Cir. 1997). How an employee independently chooses to use that insurance arguably may be no different in kind from the ways in which she decides to spend her take‐home pay. See Autocam, 2012 WL 6845677, at *6. The likeness is easy to see when the employer purchases health coverage from an insurer: once the coverage is purchased and the employee is named as a beneficiary, the employer has conveyed the benefit to the employee, and it is up to the employee and her physician (not to mention the insurer) how she will use that coverage.

The situation may seem different when the employer chooses instead to self‐fund the health care plan, in that the employer rather than an insurer is paying the bills and there is thus a more direct monetary link between the employer and whatever medical care that the employee is choosing for herself. But is the difference material? Either way, the employee is making wholly independent decisions about how to use an element of her compensation. Conestoga Wood Specialties, 2013 WL 140110, at *13‐*14; Autocam, 2012 WL 6845677, at *6. And either way, although the employer knows that certain services to which it has religious objections are covered by the plan, it plays no role in an employee’s decision whether or not to use those services, it is not the provider of those services (as it might be if it were providing health care through a company‐owned clinic), and it is not endorsing those services. See Cedric Kuschner Promotions, supra, 533 U.S. at 163, 121 S. Ct. at 2091 (“linguistically speaking, the employee and the corporation are different persons, even where the employee is the corporations’ sole owner”).

The Supreme Court’s decision in Zelman v. Simmons‐Harris, 536 U.S. 639, 652, 122 S. Ct. 2460, 2467 (2002), is, as one academic has pointed out, a helpful reference point in evaluating the nexus between an employer’s funding of a health plan and the healthcare decisions an employee makes pursuant to that plan. See Caroline Mala Corbin, The Contraception Mandate, 107 N.W. UNIV. L. REV. COLLOQUY 151, 158‐59 (Nov. 27, 2012). Zelman dealt with an Establishment Clause challenge to a pilot school “scholarship” or voucher program in Ohio. Of the more than 3,700 students who participated in the program during one school year, 96 percent of them used the vouchers to enroll at religious‐affiliated schools. 536 U.S. at 647, 122 S. Ct. at 2464. Among other arguments, Ohio taxpayers contended that the program violated the Establishment Clause for two reasons: (1) notwithstanding the private choices made by voucher recipients, the flow of voucher funds to religious schools was properly attributable to the State, such that even if the program had a legitimate secular purpose, it nonetheless had the impermissible effect of advancing religion; and (2) the program gave rise to a public perception that the State was endorsing religious practices and beliefs. Brief for Respondents Simmons‐Harris et al., 2001 WL 1636772 at *12, *37‐*38. The Court rejected these arguments, emphasizing that the voucher program was one of “true private choice.” 536 U.S. at 563, 122 S. Ct. at 2467.

No. 13‐1077

Page 14

[W]here a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.

Id. at 652, 122 S. Ct. at 2467. The Court added that “no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement.” Id. at 655, 122 S. Ct. at 2468.5

The Zelman decision supports an argument that independent decisionmaking by an insured employee and her physician severs the connection between the employer’s funding of a health care plan and the use of plan money to pay for contraceptives. I recognize, of course, that because Zelman was an Establishment Clause case, it was addressing concerns different from those that the Grotes, as private citizens with protected religious interests, are asserting here. Nonetheless, I think Zelman is relevant to the extent it recognizes that the purchase of a good or service is not necessarily attributable to the person who supplies the money, when the decision to make the purchase belongs entirely to another individual. See Korte v. U.S. Dep’t of Health & Human Servs., 2012 WL 6553996, at *10 (“Any inference of support for contraception stemming from complying with the neutral and generally applicable mandate is a de minimus burden.”).

5 See also Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 10, 113 S. Ct. 2462, 2467 (1993) (providing publicly‐funded interpreter for deaf student attending Catholic high school did not violate Establishment Clause: “The service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as disabled under the [Individuals With Disabilities Education Act, 20 U.S.C. § 1400 et seq.], without regard to the ‘sectarian‐nonsectarian, or public‐nonpublic nature’ of the school the child attends. By according parents freedom to select a school of their choice, the statute ensures that a government‐paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents. In other words, because the IDEA creates no financial incentive for parents to choose a sectarian school, an interpreter’s presence there cannot be attributed to state decisionmaking. . . .”).

No. 13‐1077

Page 15

Again, the Grotes can and do argue that because Grote Industries’ health plan is self‐ funded, they – through their businesses – are paying directly for contraceptive care rather than handing employees a voucher that they can use as they wish. I would simply add that the decision whether to self‐fund a health plan rather than to purchase coverage from an insurance carrier (which would be closer to a voucher) is a decision made by the employer, likely in part or in whole for economic reasons. One effect of that arrangement, voluntarily undertaken by the employer, is that it places the employer financially closer to the employee’s healthcare choices. Thus, to the extent the self‐funded nature of a health plan is a “crucial” factor in determining whether the plan’s mandated coverage of contraceptive care burdens an employer’s religious liberties, see Tyndale House Publishers, 2012 WL 5817323, at *13, one ought to acknowledge that the self‐funding arrangement is one of the employer’s making – and possibly one having little or nothing to do with the employer’s religious beliefs – rather than the government’s. See Autocam, 2012 WL 6845677, at *6 & n.1.

Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 120 S. Ct. 1346 (2000), is a second precedent that should be considered on the subject of funding. At issue in Southworth was a segregated activity fee that all students at the University of Wisconsin were required to pay to support various campus services and activities. One portion of that fee was allocated to support the activities of more than 600 registered student organizations, some of which engaged in political and ideological expression. Organizations primarily obtained funding by applying to one of two funds administered by the student government, which reviewed such applications on a viewpoint‐neutral basis. Students who objected to this arrangement filed suit contending that funding the student organizations by means of a dedicated, mandatory fee violated their First Amendment right to free speech; they argued that the university was obligated to give them the choice not to fund student organizations which engaged in political and ideological expression that was contrary to their personal beliefs.

In Southworth v. Grebe, 151 F.3d 717 (7th Cir. 1998), this court agreed that the fee system violated the student’s free speech rights, relying on such compelled‐speech precedents as Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S. Ct. 1782 (1977) (union member cannot be compelled to pay service fee used by union to support political candidates and express political views unrelated to its duties as bargaining representative of employees), and Keller v. State Bar of Cal., 496 U.S. 1, 110 S. Ct. 2228 (1990) (although lawyer could be compelled to join state bar association and fund activities germane to association’s regulatory mission, he could not be required to fund association’s political expression). We observed:

The students, like the objecting union members in Abood, have a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with oneʹs “freedom of belief.” Glickman [v.

No. 13‐1077

Page 16

Wileman Bros. & Elliott, Inc.], 521 U.S. [457] at [471], 117 S. Ct. [2130] at 2139 [(1997)]. And here, unlike Glickman, requiring the students to pay the mandatory student activity fees does engender a crisis of conscience. Glickman, 117 S. Ct. at 2130. Finally, in the words of the Glickman Court: “compelled contributions for political purposes ... implicated First Amendment interests because they interfere with the values lying at the ‘heart of the First Amendment[—]the notion that an individual should be free to believe as he will, and that in a free society oneʹs beliefs should be shaped by his mind and his conscience rather than coerced by the State.’ ” Id. at 2139 (quoting Abood, 431 U.S. at 234–35, 97 S. Ct. 1782). In essence, allowing the compelled funding in this case would undermine any right to “freedom of belief.” We would be saying that students like the plaintiffs are free to believe what they wish, but they still must fund organizations espousing beliefs they reject. Thus, while they have the right to believe what they choose, they nevertheless must fund what they donʹt believe.

151 F.3d at 731 (footnote omitted).

The Supreme Court unanimously reversed our holding. The Court recognized at the start “that the complaining students are being required to pay fees which are subsidies for speech they find objectionable, even offensive.” 529 U.S. at 230, 120 S. Ct. at 1354. It further acknowledged that the students’ First Amendment objection to funding such speech followed logically from cases such as Abood and Keller. Id. at 231, 120 S. Ct. at 1355. Yet, the Court was unwilling to require the university to permit students to opt out of funding organizations whose speech they found objectionable. A university could voluntarily elect to grant students such an opportunity, the Court noted, but it was not constitutionally compelled to do so. Id. at 232, 120 S. Ct. at 1355‐56. The Court did agree and affirm that the University was required to protect its students’ First Amendment interests. Id. at 233, 120 S. Ct. at 1356. But doing so did not require the University to relieve students of the obligation to pay the fee used to fund objectionable speech, the Court reasoned. Rather, looking to public forum precedents, id. at 229‐30, 120 S. Ct. at 1354, the Court concluded that “[t]he proper measure, and the principal standard of protection for objecting students, . . . is the requirement of viewpoint neutrality in the allocation of funding support,” id. at 233, 120 S. Ct. at 1356. The Court explained that, given the university’s goal of fostering open discussion by and among students, viewpoint neutrality in funding student speech represented “the justification for requiring the student to pay fee in the first instance and for ensuring the integrity of the program’s operation once the funds have been collected.” Ibid. It would protect students by ensuring “that minority views are treated with the same respect as are majority views,” and consequently that all students were given access to the forum of extracurricular student activities, id. at 235, 120 S. Ct. at 1357, and by preventing any

No. 13‐1077

Page 17

erroneous impression that any individual student organization speaks for the university, id. at 233, 120 S. Ct. at 1356 (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 841, 115 S. Ct. 2510, 2523 (1995)). As it was stipulated that funding requests submitted by student organizations to the student government at the University of Wisconsin were, indeed, reviewed on a viewpoint neutral basis, the Court concluded that the university’s funding system was consistent with the First Amendment. Id. at 234, 120 S. Ct. at 1356.6

Although Southworth, too, may be distinguished from this case, which concerns a religious objection to funding a particular category of medical care, it nonetheless has some relevance to the Grotes’ claims. Southworth recognizes that the compulsion to fund speech by others that an individual finds objectionable does not invariably constitute a violation of his own right to free speech; rather, so long as one is paying into a fund from which the expression of a variety of viewpoints is funded on a neutral basis, the rights of the individual paying into that fund are sufficiently protected. The Grotes, of course, are objecting to funding contraception, not speech; but what their company is actually required to fund is a health insurance plan that covers many medical services, not just contraception. The obligation to fund a health plan is generally applicable and neutral in the sense that the services that must be covered by the plan have not been chosen on the basis of religion. Moreover, the decision as to what services will be used is left to the employee and her doctor. To the extent the Grotes themselves are funding anything at all – and as I have discussed, one must disregard the corporate form to say that they are – they are paying for a plan that insures a comprehensive range of medical care that will be used in countless ways by the hundreds of U.S.‐based employees participating in the Grote Industries health plan. No individual decision by an employee and her physician – be it to use contraception, treat an infection, or have a hip replaced – is in any meaningful sense the Grotes’ decision or action. See Southworth, 529 U.S. at 239‐40, 120 S. Ct. at 1359 (Souter, J., concurring in the judgment) (distinguishing use of activity to fee to “indirectly fund[ ] the jumble of other speakers’ messages” from cases in which government “restrict[s] or modif[ies] the message a student wishes to express,” “require[s] an individual to bear an offensive statement personally,” or compels the objecting individual “to affirm a moral or political commitment”).

6 There was an alternative means by which student organizations might seek funding through a student referendum process. The Court noted that “[t]o the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requries.” Id. at 235, 120 S. Ct. at 1357. As the record was not well‐ developed on this avenue of funding, the Court therefore remanded the case for further exploration of that point. Id. at 235‐36, 120 S. Ct. at 1357.

No. 13‐1077

Page 18

The significance of private decisionmaking by the insured employee is worth discussing in one last respect. Heretofore, there has a been a general understanding that an employer, by virtue of paying (whether in part or in whole) for an employee’s health care, does not become a party to the employee’s health care decisions: the employer acquires no right to intrude upon the employee’s relationship with her physician and participate in her medical decisions, nor, conversely, does it incur responsibility for the quality and results of an employee’s health care if it is not actually delivering that care to the employee. This litigation seeks in a sense to upend that traditional understanding, by postulating that when a company insures its employees’ health care, a company owner indeed is a party to that care, with a cognizable religious interest in what services are made available to the employee.

The obligation to pay for contraceptive coverage is the current hot topic in federal litigation,7 because the federal contraception mandate is new.8 But contraceptive care is by no means the sole form of health care that implicates religious concerns. To cite a few examples: artificial insemination and other reproductive technologies; genetic screening, counseling, and gene therapy; preventative and remedial treatment for sexually‐transmitted diseases; sex reassignment; vaccination; organ transplantation from deceased donors; blood transfusions; stem cell therapies; end‐of‐life care, including the initiation and termination of life support; and, for some religions, virtually all conventional medical treatments. If the RFRA entitles the controlling shareholder of a corporation to exclude coverage for contraceptive care from the company’s health plan on the basis of his religious beliefs, then, as I noted in Korte v. Sebelius, 2012 WL 6757353, at *5, and Judge Barker noted below, see Grote Indus., 2012 WL 6725905, at *6, I can see no reason why coverage for any number of medical

7 By one judge’s count, some forty lawsuits have been filed challenging the mandate. See Catholic Diocese of Peoria v. Sebelius, 2013 WL 74240, at *1 & n.1 (C.D. Ill. Jan. 4, 2013) (coll. cases).
8 Parallel mandates applicable to insurers and group insurance plans have existed at the state level for a number of years. Beginning with Maryland in 1998, some twenty‐eight States had adopted mandates requiring insurers to include coverage of prescription contraceptives by the time the federal mandate took effect in 2012. See National Women’s Law Center, Guaranteeing Coverage of Contraceptives: Past & Present (Aug. 1, 2012), available at http://www.nwlc.org/resource/ guaranteeing‐coverage‐contraceptives‐past‐and‐present (last visited Jan. 27, 2013); Guttmacher Institute, STATE POLICIES IN BRIEF, Insurance Coverage of Contraceptives (as of Jan. 1, 2013), available at http://www.guttmacher.org/statecenter/spibs/spib_ICC.pdf (last visited Jan. 27, 2013). Due in part to these mandates, nine in ten employer‐based insurance plans were already covering prescription contraceptives by that time. Guttmacher Institute, FACT SHEET, Contraceptive Use in the United States, at 4 (July 2012), available at http://www.guttmacher.org/pubs/fb_contr_use.html (last visited Jan. 27, 2012).

No. 13‐1077

Page 19

services could not also be excluded from a workplace health plan on the same basis. In part, this is a point that addresses a separate consideration under the RFRA – whether there are reasonable alternatives to requiring employer‐sponsored coverage of the objected‐to form of care, and thus whether the insurance mandate is the least restrictive means of ensuring access to that care. See 42 U.S.C. § 2000bb‐1(b)(2). But I think it also helps to place in context the nature of the burden that is being asserted in this litigation. Medical decisions are made in private on an individual basis. Any given medical decision, depending on the nature of the patient’s condition, the available treatments, and the circumstances confronted by doctor and patient, might be inconsistent with the religious beliefs of one or more owners of the company that sponsors the patient’s workplace insurance. Holding that a company shareholder’s religious beliefs and practices are implicated by the autonomous health care decisions of company employees, such that the obligation to insure those decisions, when objected to by a shareholder, represents a substantial burden on that shareholder’s religious liberties, strikes me as an unusually expansive understanding of what acts in the commercial sphere meaningfully interfere with an individual’s religious beliefs and practices.

These and other issues will be fleshed out as the merits of this appeal are briefed. But the Grotes have not yet convinced me that whatever burden the contraception mandate imposes on the exercise of their religious freedom is a substantial burden, in the sense that it directly affects the exercise of their Catholic faith. See Conestoga Wood Specialties, 2013 WL 140110, at *14; Annex Med., Inc. v. Sebelius, 2013 WL 101927, at *4‐*5 (D. Minn. Jan. 8, 2013); Grote Indus., 2012 WL 6725905, at *5‐*6; Autocam, 2012 WL 6845677, at *6‐*8; Korte v. U.S. Dep’t of Health & Human Servs., 2012 WL 6553996, at *10‐*11; Hobby Lobby, 870 F. Supp. 2d at 1294‐96. I therefore do not believe that they are entitled to preliminary injunctive relief pending the resolution of their appeal.

I respectfully dissent.

 
 Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 1 of 158 PageID #: 643

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

December 31, 2013

NOTICE OF ISSUANCE OF MANDATE

To:

Nancy J. Rosenstengel

UNITED STATES DISTRICT COURT

Southern District of Illinois

East St. Louis , IL 62201-0000

CYRIL B. KORTE, et al., Plaintiffs - Appellants

No.: 12-3841

v.

U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES, et al., Defendants - Appellees
WILLIAM D. GROTE, III, et al., Plaintiffs - Appellants

No.: 13-1077

v.

KATHLEEN SEBELIUS, Secretary of Health and Human Services, et al., Defendants - Appellees
Originating Case Information:
District Court No: 3:12-cv-01072-MJR-PMF Southern District of Illinois District Judge Michael J. Reagan
Originating Case Information:
District Court No: 4:12-cv-00134-SEB-DML Southern District of Indiana, New Albany Division

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 2 of 158 PageID #: 644

Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A certified copy of the opinion/order of the court and judgment, if any, and any direction as to costs shall constitute the mandate.

RECORD ON APPEAL STATUS:

No record to be returned

NOTE TO COUNSEL: If any physical and large documentary exhibits have been filed in the above-entitled cause, they are to be withdrawn ten (10) days from the date of this notice. Exhibits not withdrawn during this period will be disposed of.
Please acknowledge receipt of these documents on the enclosed copy of this notice.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Received above mandate and record, if any, from the Clerk, U.S. Court of Appeals for the Seventh Circuit.

Date:

Received by:

____1_2_/_3_1_/_2_0_1__3___________

_________________________________________________________________ Deputy Clerk, U.S. District Court

form name: c7_Mandate(form ID: 135)

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 3 of 158 PageID #: 645

In the
United States Court of Appeals
For the Seventh Circuit

No. 12-3841 CYRIL B. KORTE, JANE E. KORTE, and KORTE & LUITJOHAN CONTRACTORS, INC.,
v.
KATHLEEN SEBELIUS, Secretary of Health & Human Services, et al.,

Plaintiffs-Appellants, Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Illinois.
No. 3:12-CV-01072-M JR — M ichael J. Reagan, Judge.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 4 of 158 PageID #: 646

2

Nos. 12-3841 & 13-1077

No. 13-1077
WILLIAM D. GROTE, III; WILLIAM DOMINIC GROTE, IV; WALTER F. GROTE, JR.; MICHAEL R. GROTE; W. FREDERICK GROTE, III; JOHN R. GROTE; GROTE INDUSTRIES, LLC; and GROTE INDUSTRIES, INC.,
Plaintiffs-Appellants,

v.

KATHLEEN SEBELIUS, Secretary of Health & Human Services, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 4:12-cv-00134-SEB-DM L — Sarah Evans Barker, Judge.
ARGUED MAY 22, 2013 — DECIDED NOVEMBER 8, 2013
Before FLAUM, ROVNER, and SYKES, Circuit Judges. SYKES, Circuit Judge. These consolidated appeals challenge the federal government’s “contraception mandate,” a regulatory requirement imposed by the Department of Health and Human Services (“HHS”) to implement the terms of the 2010

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 5 of 158 PageID #: 647

Nos. 12-3841 & 13-1077

3

Patient Protection and Affordable Care Act. The mandate requires employers to provide coverage for contraception and sterilization procedures in their employee health-care plans on a no-cost-sharing basis. Noncompliance carries heavy financial penalties and the risk of enforcement actions.
The plaintiffs are two Catholic families and their closely held corporations—one a construction company in Illinois and the other a manufacturing firm in Indiana. The businesses are secular and for profit, but they operate in conformity with the faith commitments of the families that own and manage them. The plaintiffs object for religious reasons to providing the mandated coverage. They sued for an exemption on constitutional and statutory grounds.
Center stage at this juncture is the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq., which prohibits the federal government from placing substantial burdens on “a person’s exercise of religion,” id. § 2000bb-1(a), unless it can demonstrate that applying the burden is the “least restrictive means of furthering … [a] compelling governmental interest,” id. § 2000bb-1(b). Focusing primarily on their RFRA claims, the plaintiffs in each case moved for a preliminary injunction. The district judges denied relief, holding that the claims were not likely to succeed. We provisionally disagreed and enjoined enforcement of the mandate pending appeal.
The appeals have now been briefed and argued and are ready for decision. Plenary review has confirmed our earlier judgment. These cases—two among many currently pending in courts around the country—raise important questions about

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 6 of 158 PageID #: 648

4

Nos. 12-3841 & 13-1077

whether business owners and their closely held corporations may assert a religious objection to the contraception mandate and whether forcing them to provide this coverage substantially burdens their religious-exercise rights. We hold that the plaintiffs—the business owners and their companies—may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religiousexercise rights. Under RFRA the government must justify the burden under the standard of strict scrutiny. So far it has not done so, and we doubt that it can. Because the RFRA claims are very likely to succeed and the balance of harms favors protecting the religious-liberty rights of the plaintiffs, we reverse and remand with instructions to enter preliminary injunctions barring enforcement of the mandate against them.

I. Background
A. The Contraception Mandate
On March 23, 2010, Congress adopted the Affordable Care Act, a sweeping legislative and regulatory overhaul of the nation’s health-care system. The Act “aims to increase the number of Americans covered by health insurance and decrease the cost of health care.” Nat’l Fed’n of Indep. Bus. v. Sebelius (“NFIB”), 132 S. Ct. 2566, 2580 (2012). One feature of the Act is a requirement that employee health-care plans governed by ERISA1 provide certain minimum levels of coverage to plan participants and beneficiaries. See 29 U.S.C.

1 The Employment Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 7 of 158 PageID #: 649

Nos. 12-3841 & 13-1077

5

§ 1185d (applying the requirements of part A of Title XXVII of the Public Health Services Act as amended by the Affordable Care Act to ERISA-governed group health plans). More specifically, the Affordable Care Act establishes a general requirement that employer-sponsored group health-care plans cover “preventive care and screenings” for women on a no-cost-sharing basis; Congress instructed HHS to fill in the details:
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—
…
(4) 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 [“HRSA,” an agency within HHS] for purposes of this paragraph.
42 U.S.C. § 300gg-13(a); see also 29 U.S.C. § 1185d.
Before promulgating regulations pursuant to this statutory directive, the HRSA sought advice from the Institute of Medicine at the National Academy of Science about what services to include in the preventive-care mandate. Based on the Institute’s recommendations, the HRSA issued

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 8 of 158 PageID #: 650

6

Nos. 12-3841 & 13-1077

comprehensive guidelines requiring coverage of (among other things) “[a]ll Food and Drug Administration [“FDA”] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Health Res. & Servs. Admin., Women’s Preventive Services Guidelines: Affordable Care Act Expands Prevention Coverage for Women’s Health and Well-Being, http://www.hrsa. gov/womensguidelines/ (last visited Nov. 7, 2013). These include oral contraceptives (“the pill”), barrier methods, implants and injections, emergency oral contraceptives (“Plan B” and “Ella”), and intrauterine devices.2 On February 15, 2012, HHS published final regulations incorporating the HRSA guidelines. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services, 77 Fed. Reg. 8725 (Feb. 15, 2012). The agency made the mandate effective in the first plan year on or after August 1, 2012.3 See 45 C.F.R. § 147.130(b)(1).

2 See FDA, BIRTH C ON TROL: M EDICINES TO HELP YOU, http://www.fda.gov/ Fo rC o n su m ers/ByA ud ience/Fo rWo m en/F reePu blicatio ns/u cm 31 3 21 5 .htm (last visited Nov. 7, 2013).
3 In July the Treasury Department announced a one-year delay in the implementation of the so-called employer mandate. See Mark J. Mazur, Continuing to Implement the ACA in a Careful, Thoughtful Manner, TREASURY NOTES (July 2, 2013), http://www.treasury.gov/connect/blog/pages/ continuing-to-implement-the-aca-in-a-careful-thoughtful-manner-.aspx. The announcement did not mention the contraception mandate, which was already in effect. We assume that the postponement of the employer mandate has no effect on the contraception mandate; the government has not advised otherwise.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 9 of 158 PageID #: 651

Nos. 12-3841 & 13-1077

7

Noncompliance with the contraception mandate is punished by steep financial penalties and other civil remedies. For example, failure to provide the mandated coverage brings a tax penalty of $100 per day per employee—$36,500 per year per employee. See 26 U.S.C. § 4980D(a), (b)(1). If an employer discontinues offering a health plan altogether, the penalty is $2,000 per year per employee. See id. § 4980H(a), (c). In addition, noncomplying employers face potential enforcement actions by the Secretary of Labor and plan participants and beneficiaries under ERISA. See 29 U.S.C. §§ 1132, 1185d.
Like many of the other employer mandates in the Affordable Care Act, the contraception mandate applies to employers with 50 or more full-time employees. See 26 U.S.C. § 4980H. Smaller employers—those with fewer than 50 full-time employees—are not required to provide a health plan for their employees and apparently are not subject to the coverage minimums, including the contraception mandate. See id. We say “apparently” because it’s not entirely clear that the mandate is categorically inapplicable to small employers; the government takes the position that if a small employer not otherwise required to provide an employee health-care plan nonetheless chooses to do so, the regulatory scheme requires inclusion of the mandated contraception coverage.
Health plans in existence when the Act was adopted are “grandfathered” and do not need to comply with the coverage minimums—including the contraception mandate—unless the plan sponsor makes certain changes to the terms of the plan. See 42 U.S.C. § 18011. Grandfathering is a transitional measure; this category will shrink as employer-based plans existing

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 10 of 158 PageID #: 652

8

Nos. 12-3841 & 13-1077

prior to March 23, 2010, undergo changes. The government estimates that the number of plans in grandfathered status will dwindle fairly rapidly as older health-care plans are updated and renewed. See Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan, 75 Fed. Reg. 34,538, 34,552 (June 17, 2010).
Finally, some religious employers are exempt from the contraception mandate, see 45 C.F.R. § 147.130(a)(1)(iv)(A), but “religious employer” was initially defined quite narrowly:
[A] “religious employer” [for purposes of an exemption from the contraception mandate] is an organization that meets 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 [covering the tax status of churches and their integrated auxiliaries,

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 11 of 158 PageID #: 653

Nos. 12-3841 & 13-1077

9

conventions or associations of churches, and the exclusively religious activities of religious orders].
Id. § 147.130(a)(1)(iv)(B).

B. The Religious-Employer Controversy
The contraception mandate was instantly controversial.4 The religious-employer exemption did not leave room for conscientious religious objectors other than houses of worship, their integrated affiliate organizations, and religious orders acting as such. In other words, the definition of “religious employer” was so circumscribed that it left out religious colleges and universities; religious hospitals and clinics; religious charities and social-service organizations; other faithbased nonprofits; and for-profit, closely held businesses managed in accordance with a religious mission or creed.
HHS responded to the outcry from these left-out employers by establishing a temporary “safe harbor” for certain nonprofit religious organizations not covered by the exemption. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services, 77 Fed. Reg. at 8728. Eventually the agency proposed a revised definition of “religious employer” and an “accommodation” of a broader class of
4 The mandate prompted a proliferation of lawsuits by employers seeking exemptions on religious-liberty grounds. By one count more than 70 suits challenging the mandate are currently pending. See The Becket Fund for Religious Liberty, HHS M andate Information Central, THEBECKETFUND.ORG, h ttp ://w w w.b e c k e tfu n d .o r g /h h sin fo r m a tio n c e n tral.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 12 of 158 PageID #: 654

10

Nos. 12-3841 & 13-1077

nonprofit religious organizations with objections to the mandated coverage. The new rules were proposed in final form on February 6, 2013, see Coverage of Certain Preventive Services, 78 Fed. Reg. 8456, published in final form on July 2, 2013, see 78 Fed. Reg. 39,870, and became effective August 1, 2013, see id.
As revised, the exemption drops the first three requirements of the earlier definition of “religious employer,” but the change is not intended to alter the exemption’s scope. “Religious employer” is now defined as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a). The crossreference is the tax exemption for churches and their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of religious orders. See 26 U.S.C. § 6033(a)(3)(A)(i), (iii). HHS has explained that “the simplified and clarified definition of religious employer does not expand the universe of religious employers that qualify for the exemption beyond that which was intended in the 2012 final regulations.” Coverage of Certain Preventive Services, 78 Fed. Reg. at 39,874. In other words, the exemption remains limited to “[h]ouses of worship and their integrated auxiliaries.” Id.
Under the revised rule, certain nonprofit religiously affiliated employers may receive an “accommodation”—essentially, an attempted workaround whereby the objecting employer gives notice to its insurance carrier and the insurer issues a separate policy with the mandated coverage.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 13 of 158 PageID #: 655

Nos. 12-3841 & 13-1077

11

The accommodation is limited to organizations that meet the following requirements:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section … .
45 C.F.R. § 147.131(b). Notably for our purposes, neither the final religious-employer exemption nor the accommodation applies to for-profit employers with conscientious religious objections to providing the mandated coverage.

C. The Plaintiffs
1. The Kortes and K & L Contractors
Cyril and Jane Korte own and operate Korte & Luitjohan Contractors, Inc. (“K & L Contractors”), a construction company located in Highland, Illinois. K & L Contractors has approximately 90 full-time employees, 70 of whom belong to a union that sponsors their health-insurance plan. The company provides a health-care plan for the remaining 20 or so

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 14 of 158 PageID #: 656

12

Nos. 12-3841 & 13-1077

nonunion employees. Together, Cyril and Jane own about 87% of the stock of the corporation and are its only directors. Cyril is the president and Jane is the secretary of the company. As officers and directors, they set all company policy.
The Kortes are Catholic and follow the teachings of the Catholic Church regarding the sanctity of human life from conception to natural death and the moral wrongfulness of abortion, sterilization, and the use of abortifacient drugs and artificial means of contraception. They seek to manage their company in accordance with their faith commitments. In August 2012 when the contraception mandate was finalized, the Kortes discovered that their then-existing health plan covered sterilization and contraception—coverage that they did not realize they were carrying. Because providing this coverage conflicts with their religious convictions, they began to investigate alternative health-care plans with the intention of terminating their existing plan and substituting one that conforms to the requirements of their faith.
The contraception mandate stood in their way. The company’s existing health-care plan was set to renew on January 1, 2013, triggering the requirements of the mandate and the large financial penalties and possible enforcement actions if they did not comply. As the Kortes understand their religious obligations, providing the mandated coverage would facilitate a grave moral wrong. On the other hand, following the teachings of their faith and refusing to comply would financially devastate K & L Contractors and the Kortes as its owners; at $100 per day per employee, the monetary penalties would total $730,000 per year.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 15 of 158 PageID #: 657

Nos. 12-3841 & 13-1077

13

The Kortes responded to the conflict between their legal and religious duties in two ways. First, they promulgated ethical guidelines for K & L Contractors memorializing the faith-informed moral limitations on the company’s provision of health-care benefits, including its inability to provide insurance coverage for abortion, abortifacient drugs, artificial contraception, and sterilization.5 Second, the Kortes and K & L

5 The company’s ethical guidelines are as follows:
1. As adherents of the Catholic faith, we hold to the teachings of the Catholic Church regarding the sanctity of human life from conception to natural death. We believe that actions intended to terminate an innocent human life by abortion, including abortion-inducing drugs, are gravely sinful. We also adhere to the Catholic Church’s teaching regarding the immorality of artificial means of contraception and sterilization.
2. As equal shareholders who together own a controlling interest in Korte & Luitjohan Contractors, Inc., we wish to conduct the business … in a manner that does not violate our religious faith and values.
3. Accordingly, we and Korte & Luitjohan Contractors, Inc. cannot arrange for, pay for, provide, facilitate, or otherwise support employee health plan coverage for contraceptives, sterilization, abortion, abortion-inducing drugs, or related education and counseling, except in the limited circumstances where a physician certifies that certain sterilization procedures or drugs commonly used as contraceptives are being prescribed with the intent to treat certain medical conditions, not with the intent to prevent or terminate pregnancy, without violating our religious beliefs.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 16 of 158 PageID #: 658

14

Nos. 12-3841 & 13-1077

Contractors filed suit in the Southern District of Illinois for a religious exemption from the mandate.

2. The Grotes and Grote Industries
The Grote Family owns and manages Grote Industries, Inc., a manufacturer of vehicle safety systems headquartered in Madison, Indiana.6 Like the Kortes, the members of the Grote Family are Catholic and they manage Grote Industries in accordance with their religious commitments, including Catholic moral teaching regarding the sanctity of human life and the wrongfulness of abortion, abortifacient drugs, artificial contraception, and sterilization.
Grote Industries has 1,148 full-time employees at various locations, including 464 in the United States. The company provides a health-care plan that is self-insured and renews annually on the first of every year. Consistent with the Grote Family’s Catholic faith, prior to January 1, 2013, the employee health-care plan did not cover contraception and sterilization

6 The Grote Family includes individual plaintiffs William D. Grote, III; William Dominic Grote, IV; Walter F. Grote, Jr.; M ichael R. Grote; W. Frederick Grote, III; and John R. Grote. Together with other family members not named as plaintiffs, they fully own Grote Industries, Inc., which in turn is the managing member of Grote Industries, LLC, the manufacturing firm. For ease of reference, we refer to the two companies as “Grote Industries.” William D. Grote, III is Chairman and CEO; William Dominic Grote, IV is President and Chief Operating Officer; Walter F. Grote, Jr. is a board member; M ichael R. Grote is the A ssistant Treasurer; W. Frederick Grote, III is the Secretary; and John R. Grote is the A ssistant Secretary.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 17 of 158 PageID #: 659

Nos. 12-3841 & 13-1077

15

procedures. Starting on that date, however, the requirements of the contraception mandate kicked in.
Like the Kortes and K & L Contractors, the Grote Family and Grote Industries object on religious grounds to providing coverage for contraception, abortion-inducing drugs, and sterilization procedures. But with its large full-time workforce, the company faced an annual penalty of almost $17 million if it did not comply with the mandate. The Grotes and Grote Industries filed suit in the Southern District of Indiana for a religious exemption from the mandate.

D. The Litigation
Both complaints name the Secretaries of HHS, Labor, and the Treasury as defendants and seek declaratory and injunctive relief against the contraception mandate. Both sets of plaintiffs allege that the mandate violates their rights under RFRA; the Free Exercise Clause, the Establishment Clause, and the Free Speech Clause of the First Amendment; and the Administrative Procedure Act. The Grote complaint adds a due-process claim. In both cases the plaintiffs moved for a preliminary injunction the day after filing suit, focusing primarily though not exclusively on their RFRA claims.
In Korte the district court in Southern Illinois denied the motion, concluding that the Kortes and K & L Contractors had not demonstrated a likelihood of success on the merits. Regarding the RFRA claim in particular, the judge held that although the Kortes and K & L Contractors are “persons” within the meaning of RFRA and may invoke the statute’s

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 18 of 158 PageID #: 660

16

Nos. 12-3841 & 13-1077

protection, the contraception mandate does not substantially burden their religious-exercise rights. This is so, the judge held, because the link between the mandated coverage and the acts condemned by the Kortes’ religion is too attenuated. In other words, the burden on religious exercise is insubstantial because the compelled provision of contraception coverage is too far removed from the independent decisions by plan participants and beneficiaries to use contraception. The court also found the free-exercise claim unlikely to succeed.
In Grote the district court in Southern Indiana likewise denied the motion, also concluding that the plaintiffs were not likely to succeed on their RFRA claim. Unlike her colleague in Southern Illinois, however, the Indiana judge doubted that a secular, for-profit corporation like Grote Industries has religious-exercise rights under RFRA. The judge did not decide the question, however, concluding instead that any burden on the Grotes or Grote Industries is insignificant because too many independent decisions separate the provision of the mandated coverage and the practices deemed immoral by the Catholic Church. The court also found the constitutional and Administrative Procedure Act claims unlikely to succeed.
The case from Southern Illinois reached us first, just before the January 1, 2013 deadline for compliance with the mandate. The plaintiffs sought an injunction pending appeal. In a brief order and based on our early review of the merits, we provisionally held that the RFRA claim is likely to succeed and the balance of harms weighs in favor of the religious-liberty rights of the plaintiffs. See Korte v. Sebelius, No. 12-3841, 2012 WL 6757353, *4–5 (7th Cir. Dec. 28, 2012). We enjoined enforcement

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 19 of 158 PageID #: 661

Nos. 12-3841 & 13-1077

17

of the mandate pending appeal. Id. at *5. Our colleague dissented. Id. at *5–6 (Rovner, J., dissenting).
On the strength of our provisional decision in Korte, the Grotes and Grote Industries returned to the district court in Southern Indiana and asked for reconsideration. The judge acknowledged the similarity between the two cases but declined to reconsider because our order in Korte had no precedential effect. The plaintiffs appealed and asked for an injunction pending appeal. Tracing our analysis in Korte, we granted the request and enjoined enforcement of the mandate pending appeal. Grote v. Sebelius, 708 F.3d 850, 853–55 (7th Cir. 2013). Again, our colleague disagreed, filing a thoughtful dissent explaining her contrary position. Id. at 855–67 (Rovner, J., dissenting).
The appeals proceeded to full briefing, and we heard argument at the end of May. Since then, four circuits have reached decision in similar cases. The Tenth Circuit held that two closely held, for-profit businesses and their owners are likely to succeed on a claim for an exemption from the mandate under RFRA. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013). The Sixth and Third Circuits disagree. Autocam Corp. v. Sebelius, 730 F.3d 618 (6th Cir. 2013); Conestoga Wood Specialties Corp. v. Sec’y of the U.S. Dep’t of Health & Human Servs., 724 F.3d 377 (3d Cir. 2013). The D.C. Circuit recently held that the owners of two closely held, forprofit businesses are likely to succeed on a RFRA challenge to the mandate, although their companies are not. Gilardi v. U.S. Dep’t of Health & Human Servs., No. 13-5069, 2013 WL 5854246 (D.C. Cir. Nov. 1, 2013).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 20 of 158 PageID #: 662

18

Nos. 12-3841 & 13-1077

II. Analysis
These cases come to us on appeals from orders denying preliminary injunctive relief. See 28 U.S.C. § 1291. To win a preliminary injunction, the moving party must demonstrate that (1) it has no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied; and (2) there is some likelihood of success on the merits of the claim. See Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). If the moving party meets this threshold burden, the court weighs the competing harms to the parties if an injunction is granted or denied and also considers the public interest. See Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962, 972 (7th Cir. 2012); Ezell, 651 F.3d at 694. This equitable balancing proceeds on a sliding-scale analysis; the greater the likelihood of success on the merits, the less heavily the balance of harms must tip in the moving party’s favor. See Planned Parenthood, 699 F.3d at 972. The aim is to minimize the costs of a wrong decision. See Stuller, Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir. 2012). Our review proceeds on a split standard of review: We review legal conclusions de novo, findings of fact for clear error, and equitable balancing for abuse of discretion. Ezell, 651 F.3d at 694.
Here, the analysis begins and ends with the likelihood of success on the merits of the RFRA claim. On the strength of that claim alone, preliminary injunctive relief is warranted; there is no need to remand for the district courts to weigh the injunction equities. Although the claim is statutory, RFRA protects First Amendment free-exercise rights, and “in First

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 21 of 158 PageID #: 663

Nos. 12-3841 & 13-1077

19

Amendment cases, ‘the likelihood of success on the merits will often be the determinative factor.’ ” ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012) (quoting Joelner v. Village of Washington Park, Ill., 378 F.3d 613, 620 (7th Cir. 2004)). “This is because the ‘loss of First Amendment freedoms … unquestionably constitutes irreparable injury … .’ ” Id. (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)). Moreover, once the moving party establishes a likelihood of success on the merits, the balance of harms “normally favors granting preliminary injunctive relief” because “ ‘injunctions protecting First Amendment freedoms are always in the public interest.’ ” Id. at 590 (quoting Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006)). The government hasn’t addressed equitable balancing, conceding the point to the plaintiffs. So the appeals turn entirely on whether the plaintiffs’ RFRA claims are likely to succeed.
Two legal questions are contested: (1) is a secular, for-profit corporation a “person” under RFRA; and (2) does the contraception mandate substantially burden the religious-exercise rights of any of the plaintiffs, individual or corporate? If the answer to these questions is “yes,” the government must discharge its burden of justifying the mandate under strict scrutiny. We conclude as follows: The corporate plaintiffs are “persons” under RFRA and may invoke the statute’s protection; the contraception mandate substantially burdens the religious-exercise rights of all of the plaintiffs; and the government has not carried its burden under strict scrutiny.
First, however, we clear away some possible jurisdictional objections.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 22 of 158 PageID #: 664

20

Nos. 12-3841 & 13-1077

A. Jurisdiction
Although the government never challenged jurisdiction, either in the district court or here, we have an independent obligation to satisfy ourselves that jurisdiction is secure before proceeding to the merits. See Minn-Chem, Inc. v. Agrium Inc., 683 F.3d 845, 853 (7th Cir. 2012) (en banc); Carroll v. Stryker Corp., 658 F.3d 675, 680 (7th Cir. 2011). There are two arguable jurisdictional issues lurking here: standing and the Anti-Injunction Act.7

7 Just before oral argument, the government filed a “Notice of Supplemental Briefing on Jurisdictional Issues,” drawing our attention to a brief it filed in response to a jurisdictional order from the Tenth Circuit in Hobby Lobby. The plaintiffs moved to strike this “notice.” Although the government’s approach is unorthodox, we have reviewed its supplemental brief in the Tenth Circuit case. In it the government argued that the corporate plaintiffs in Hobby Lobby have standing but the owners of the corporations do not. Supplemental Brief for Appellees at 3–9, Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), 2013 W L 1790515 at *3–9. The government also took the position that the Anti-Injunction Act does not apply. Id. at 12–15, 2013 W L 1790515 at *12–15. The Tenth Circuit, sitting en banc, unanimously held that the corporations have standing and that the Anti-Injunction Act does not apply; four members of the court also concluded that the individual plaintiffs have standing. See Hobby Lobby, 723 F.3d at 1121, 1126 (Tymkovich, J.); id. at 1154–56 (Gorsuch, J., concurring); id. at 1184–89 (Matheson, J., concurring in part and dissenting in part). We have conducted our own jurisdictional analysis and find no jurisdictional impediments to reaching the merits. Accordingly, the government’s “Notice of Supplemental Briefing” is inconsequential, and we deny the plaintiffs’ motion to strike.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 23 of 158 PageID #: 665

Nos. 12-3841 & 13-1077

21

1. Standing
Article III of the Constitution limits the judicial power to “Cases” and “Controversies,” U.S. CONST. art. III, § 2, cl. 1; Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013), a limitation understood to confine the federal courts to “the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law,” Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009). The doctrine of standing enforces this limitation. Id.; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To invoke the authority of a federal court, a litigant must have “an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged action; and redressable by a favorable ruling.” Horne v. Flores, 557 U.S. 433, 445 (2009).
The contraception mandate inflicts a concrete and particularized injury on all of the plaintiffs.8 The mandate operates directly on K & L Contractors and Grote Industries, forcing them to provide contraception coverage in their employee health-care plans on pain of onerous financial penalties and the possibility of enforcement actions by federal regulators

8 We note that “[w]here at least one plaintiff has standing, jurisdiction is secure and the court will adjudicate the case whether the additional plaintiffs have standing or not.” Ezell v. City of Chicago, 651 F.3d 684, 696 n.7 (7th Cir. 2011) (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 (1977)).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 24 of 158 PageID #: 666

22

Nos. 12-3841 & 13-1077

charged with implementing the Affordable Care Act.9 The threat of financial penalty and other enforcement action is easily sufficient to establish standing to challenge the mandate prior to its enforcement. The companies need not violate the mandate and risk enforcement of the regulatory scheme before bringing suit. See Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 147 (7th Cir. 2011). The “existence of a statute implies a threat to prosecute, so pre-enforcement challenges are proper [under Article III] because a probability of future injury counts as ‘injury’ for purposes of standing.” Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir. 2010).
The Kortes and Grotes also have Article III standing, although this conclusion requires a bit more elaboration. The contraception mandate injures the individual plaintiffs in two concrete ways. First, because corporate ownership is closely held, the mandate’s indirect effect on the financial interests of the Kortes and Grotes as controlling shareholders is a concrete injury sufficient to support Article III standing under Supreme Court and circuit precedent. See Franchise Tax Bd. of Calif. v. Alcan Aluminum Ltd., 493 U.S. 331, 336 (1990) (indirect sole shareholders have Article III standing to challenge taxes assessed against their wholly owned subsidiaries); Rawoof v. Texor Petroleum Co., 521 F.3d 750, 756 (7th Cir. 2008) (sole shareholder of a corporation operating a branded petroleum

9 Whether the corporate plaintiffs are “persons” with religious-exercise rights within the meaning of RFRA is a merits question, not a jurisdictional question. See Chafin v. Chafin, 133 S. Ct. 1017, 1024 (2013); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102–03 (1998); Minn-Chem, Inc. v. Agrium Inc., 683 F.3d 845, 852–53 (7th Cir. 2012) (en banc).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 25 of 158 PageID #: 667

Nos. 12-3841 & 13-1077

23

franchise has Article III standing to challenge franchisor’s termination of the franchise under the Petroleum Marketing Practices Act).
Second, the Kortes and the Grotes face an intangible but no less concrete injury to their religious-exercise rights. It is axiomatic that organizational associations, including corporations, act only through human agency. See Reich v. Sea Sprite Boat Co., 50 F.3d 413, 417 (7th Cir. 1995) (“incorporeal abstractions act through agents”). As owners, officers, and directors of their closely held corporations, the Kortes and Grotes set all company policy and manage the day-to-day operations of their businesses. Complying with the mandate requires them to purchase the required contraception coverage (or self-insure for these services), albeit as agents of their companies and using corporate funds. But this conflicts with their religious commitments; as they understand the requirements of their faith, they must refrain from putting this coverage in place because doing so would make them complicit in the morally wrongful act of another.
Compelling a person to do an act his religion forbids, or punishing him for an act his religion requires, are paradigmatic religious-liberty injuries sufficient to invoke the jurisdiction of the federal courts. See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 428 (2006); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); United States v. Lee, 455 U.S. 252 (1982); Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 26 of 158 PageID #: 668

24

Nos. 12-3841 & 13-1077

Finally, we note that the shareholder-standing rule does not block the Kortes and Grotes from challenging the mandate. The rule is an aspect of third-party standing doctrine, which implements the general principle that litigants may not sue in federal court to enforce the rights of others. See Franchise Tax Bd., 493 U.S. at 336; Warth v. Seldin, 422 U.S. 490, 498 (1975); Rawoof, 521 F.3d at 757; MainStreet Org. of Realtors v. Calumet City, 505 F.3d 742, 745 (7th Cir. 2007). Subject to certain exceptions, the rule “holds that a shareholder generally cannot sue for indirect harm he suffers as a result of an injury to the corporation.” Rawoof, 521 F.3d at 757 (citing Franchise Tax Bd., 493 U.S. at 336).
Like other rules of third-party standing, however, the shareholder-standing rule is a prudential limitation and does not affect the court’s authority to hear the case. “Prudentialstanding doctrine ‘is not jurisdictional in the sense that Article III standing is.’ ” Id. at 756 (quoting MainStreet Realtors, 505 F.3d at 747). Unlike true jurisdictional rules, prudential limitations on standing can be waived. See G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 535, 540 (7th Cir. 2012); MainStreet Realtors, 505 F.3d at 747. By failing to raise the shareholderstanding rule in the district court or here, the government waived it. Although we have the discretion to overlook the waiver, see Rawoof, 521 F.3d at 756–57; MainStreet Realtors, 505 F.3d at 747, doing so here would be pointless. A wellestablished exception allows “a shareholder with a direct, personal interest in a cause of action to bring suit even if the corporation’s rights are also implicated.” Franchise Tax Bd., 493 U.S. at 336. The Kortes and the Grotes fall comfortably within the exception; they have a direct and personal interest

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 27 of 158 PageID #: 669

Nos. 12-3841 & 13-1077

25

in vindicating their individual religious-liberty rights, even though the rights of their closely held corporations are also at stake.

2. The Anti-Injunction Act
The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” 26 U.S.C. § 7421(a). The Act “protects the Government’s ability to collect a consistent stream of revenue[] by barring litigation to enjoin or otherwise obstruct the collection of taxes.” NFIB, 132 S. Ct. at 2582; see also Hibbs v. Winn, 542 U.S. 88, 103 (2004); Bob Jones Univ. v. Simon, 416 U.S. 725, 736 (1974); Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962). By operation of the Act, a tax ordinarily may be challenged only in a suit for a refund after it is paid. NFIB, 132 S. Ct. at 2582; Bob Jones Univ., 416 U.S. at 736–37.
The Anti-Injunction Act does not apply here.10 These are not suits “for the purpose of” restraining the assessment or collection of a tax. The suits seek relief from a regulatory mandate that exists separate and apart from the assessment or collection of taxes. The contraception mandate is not itself a tax

10 The A nti-Injunction Act is generally assumed to be a jurisdictional bar. See Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 6–8 (1962). That m ay be incorrect. See Hobby Lobby, 723 F.3d at 1157–59 (Gorsuch, J., concurring).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 28 of 158 PageID #: 670

26

Nos. 12-3841 & 13-1077

provision; its location within the United States Code and corresponding HHS regulations underscores as much.
The mandate was promulgated by HHS pursuant to authority delegated to it by a section of the Affordable Care Act that amends the Public Health Services Act. See 42 U.S.C. § 300gg-13(a)(4). The statutory component of the mandate imposes a general preventive-care requirement on all group health-care plans (including employer-sponsored plans) and issuers of individual and group health-insurance policies. See id. The mandate is situated in the public-welfare title of the Code of Federal Regulations—more specifically, in the part containing regulations governing the group and individual health-insurance markets. See 45 C.F.R. § 147.130. The mandate is backed by stiff tax penalties against employers that fail to comply, see 26 U.S.C. §§ 4980D, 4980H, but there are additional consequences for noncompliance, including ERISA enforcement actions by the Secretary of Labor and plan participants and beneficiaries, see 29 U.S.C. §§ 1132, 1185d. Noncompliant health insurers are subject to the enforcement authority of the Secretary of HHS as well as the states in which they operate. See 42 U.S.C. § 300gg-22.
It should be clear from this description that the contraception mandate is not structured as a predicate to the imposition of a tax but is instead an independent regulatory mandate. These lawsuits target the mandate itself.
It is true that the complaints name the Treasury Secretary as a defendant in addition to the Secretaries of HHS and Labor, and the plaintiffs have asked the court to enjoin the enforcement of the mandate by any of them. If the plaintiffs win an

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 29 of 158 PageID #: 671

Nos. 12-3841 & 13-1077

27

exemption from the mandate, they will not be liable for the tax penalty under § 4980D and will be insulated from other means of enforcement as well. In that sense these lawsuits, if successful, will incidentally affect the corporate plaintiffs’ tax liability. But the Anti-Injunction Act does not reach “all disputes tangentially related to taxes.” Cohen v. United States, 650 F.3d 717, 727 (D.C. Cir. 2011); see also Pendleton v. Heard, 824 F.2d 448, 451–52 (5th Cir. 1987) (restraining the assessment or collection of a tax must be the primary purpose of the lawsuit, not an incidental effect of it, for the Anti-Injunction Act to apply); Linn v. Chivatero, 714 F.2d 1278, 1282 (5th Cir. 1983) (same).
Still, there is no doubt that § 4980D, a provision in the Internal Revenue Code, is implicated in the remedial sweep of these cases, so we think it best to address whether it is properly classified as a “tax” within the meaning of the Anti-Injunction Act. It is not.
We acknowledge that Congress used the term “tax” in the text of § 4980D (and also in § 4980H, the alternative “shared responsibility payment” for employers that drop or otherwise go without an employee health-care plan). The language Congress uses to describe an exaction is ordinarily the best evidence of whether it meant the Anti-Injunction Act to apply. See NFIB, 132 S. Ct. at 2582–83. But Congress also called the payment specified in § 4980D a “penalty.” The statute was originally adopted as part of the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936, and was titled “Penalty on Failure to Meet Certain Group Health Plan Requirements,” see id. § 402, 110 Stat. 1936, 2084

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 30 of 158 PageID #: 672

28

Nos. 12-3841 & 13-1077

(emphasis added). The language Congress used is contradictory and thus inconclusive.
Other features of § 4980D confirm that the provision is meant to penalize employers for noncompliance with the various mandates in the Affordable Care Act and its implementing regulations. The sheer size of the required payment fairly screams “penalty.” Any failure to provide the mandated minimum coverage—no matter how significant the deviation— costs the employer a whopping $100 per day per employee. See 26 U.S.C. § 4980D(b). Exacting such a high price for noncompliance suggests that the congressional objective is punitive. See Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d 722, 729 (7th Cir. 2011) (“[A] tax might be so totally punitive in purpose and effect that, since nomenclature is unimportant, it should be classified as a fine rather than a tax.”) (applying the parallel Tax Injunction Act, which protects the collection of state taxes).
When Congress regulates private conduct and makes noncompliance painful by exacting severe and disproportionate monetary consequences, the primary purpose of the scheme must be understood as regulatory and punitive rather than revenue raising. See Robertson v. United States, 582 F.2d 1126, 1128 (7th Cir. 1978) (the Anti-Injunction Act does not apply to “the exaction of a purely regulatory tax”). The obvious aim of § 4980D is not to raise revenue but to achieve broad compliance with the regulatory regime through deterrence and punishment. This is so even though the exaction generates some revenue because “deterrence is never perfect.” Empress Casino, 651 F.3d at 728–29; see also Retail Indus. Leaders

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 31 of 158 PageID #: 673

Nos. 12-3841 & 13-1077

29

Ass’n v. Fielder, 475 F.3d 180, 189 (4th Cir. 2007) (the Tax Injunction Act does not apply to a challenge to Maryland’s “Fair Share Act” requiring a minimum level of spending on employee health-care benefits).
The statute also contains several exceptions based on the employer’s scienter, see 26 U.S.C. § 4980D(c), a key indication that the payment is a penalty, not a tax. See NFIB, 132 S. Ct. at 2595 (“[S]cienter requirements are typical of punitive statutes, because Congress often wishes to punish only those who intentionally break the law.”); Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20, 37 (1922) (“Scienter[] [is] associated with penalties, not with taxes.”). Finally, the $100-per-day-per-employee formula is repeated verbatim in 42 U.S.C. § 300gg-22(b)(2)(C)(ii), which authorizes the Secretary of HHS to impose the same sort of penalty on noncompliant insurers that § 4980D(b)(1) imposes on noncompliant employers.
Together, these aspects of the regulatory scheme all point in the same direction: Section 4980D is a penalty for noncompliance with the regulatory mandates on employer-based health-care plans. It is not a tax for purposes of the AntiInjunction Act. By parallel reasoning the same is true of the alternative payment in § 4980H. This conclusion comports with the Supreme Court’s decision in NFIB, which held that the Affordable Care Act’s “shared responsibility payment” for noncompliance with the individual insurance mandate is not a tax for purposes of the Anti-Injunction Act. 132 S. Ct. at 2582–84. Here, as in NFIB, the Anti-Injunction Act does not block a decision on the merits.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 32 of 158 PageID #: 674

30

Nos. 12-3841 & 13-1077

B. The RFRA Claim
In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 883–90 (1990), the Supreme Court held that the religious freedom guaranteed by the Free Exercise Clause of the First Amendment does not require religious exemptions from facially neutral laws of general applicability.11 Smith altered the then-prevailing standard of Sherbert v. Verner, 374 U.S. at 406–07, and Wisconsin v. Yoder, 406 U.S. at 220–21, which applied strict scrutiny to laws that had the effect of burdening religious practices. Under Sherbert and Yoder, a substantial burden on religious exercise—even one arising from the application of a religion-neutral, generally applicable law—was unconstitutional unless the government could show that the burden was the least restrictive means of furthering a compelling public interest. Smith changed that understanding of the free-exercise right. The Court held that neutral laws of general applicability need only satisfy the basic test for rationality that applies to all laws; if a law incidentally burdens the exercise of religion, the Constitution does not require an exemption. Smith, 494 U.S. at 878–79, 888–90.
Congress responded to this shift in free-exercise doctrine by enacting RFRA, “a statutory rule comparable to the constitutional rule rejected in Smith.” O Centro Espirita, 546 U.S. at 424; see also Cutter v. Wilkinson, 544 U.S. 709, 714–15 (2005); City of Boerne v. Flores, 521 U.S. 507, 512 (1997). RFRA creates a broad

11 The First Amendment provides, in pertinent part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof … .” U.S. CONST. amend. I.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 33 of 158 PageID #: 675

Nos. 12-3841 & 13-1077

31

statutory right to case-specific exemptions from laws that substantially burden religious exercise even if the law is neutral and generally applicable, unless the government can satisfy the compelling-interest test. RFRA represents a congressional judgment that the rule of Smith is insufficiently protective of religious liberty.12 Congress filled the gap by expressly

12 Congress’s findings and purposes in enacting RFRA are as follows:
(a) Findings
The Congress finds that—
(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
(2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990)[,] the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; … .
(b) Purposes
The purposes of this chapter are—
(1) to restore the compelling interest test (continued...)

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 34 of 158 PageID #: 676

32

Nos. 12-3841 & 13-1077

“requir[ing] accommodation rather than neutrality.” O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003).
RFRA’s general rule is as follows:
Free exercise of religion protected
(a) In general
Government shall not substantially 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. The exception is as follows:
(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

12 (...continued) 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.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 35 of 158 PageID #: 677

Nos. 12-3841 & 13-1077

33

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
Id.13 Any “person whose religious practices are burdened in violation of RFRA ‘may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief.’ ” O Centro Espirita, 546 U.S. at 424 (quoting 42 U.S.C. § 2000bb-1(c)).
RFRA applies retrospectively and prospectively to “all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after” its effective date. 42 U.S.C. § 2000bb-3(a). Prospective application is qualified by the rule that “statutes enacted by one Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute as modified.” Dorsey v. United States, 132 S. Ct. 2321, 2331 (2012). RFRA accounts for this principle too; the statute does not apply to a subsequently enacted law if it

13 In City of Boerne v. Flores, 521 U.S. 507, 532–36 (1997), the Supreme Court held that as applied to the States, RFRA exceeded Congress’s legislative authority under § 5 of the Fourteenth Amendment. This did not call into question Congress’s authority to “determine how the national government will conduct its own affairs,” O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003), so RFRA remains in full force against the federal government, see Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006); see also O’Bryan, 349 F.3d at 401.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 36 of 158 PageID #: 678

34

Nos. 12-3841 & 13-1077

“explicitly excludes such application by reference to this chapter.” 42 U.S.C. § 2000bb-3(b). We note the qualifier only to explain how RFRA works; it has no bearing here. The Affordable Care Act does not explicitly exclude application of RFRA.

* * *
Congress’s protective stance in favor of religious accommodation could not be clearer. RFRA’s statement of purpose explicitly reaffirms our national commitment to the “free exercise of religion as an unalienable right,” id. § 2000bb(a)(1), existing prior to and above ordinary law. RFRA is structured as a “sweeping ‘super-statute,’ cutting across all other federal statutes (now and future, unless specifically exempted) and modifying their reach.” Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 MONT. L. REV. 249, 253 (1995). It is “both a rule of interpretation” and “an exercise of general legislative supervision over federal agencies, enacted pursuant to each of the federal powers that gives rise to legislation or agencies in the first place.” Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 TEX. L. REV. 209, 211 (1994); see also Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2110 (2002) (explaining the function of generally applicable statutory rules of interpretation).
In short, RFRA operates as a kind of utility remedy for the inevitable clashes between religious freedom and the realities of the modern welfare state, which regulates pervasively and touches nearly every aspect of social and economic life. See Thomas C. Berg, What Hath Congress Wrought? An Interpretative

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 37 of 158 PageID #: 679

Nos. 12-3841 & 13-1077

35

Guide to the Religious Freedom Restoration Act, 39 VILL. L. REV. 1, 25–26 (1994). Judges are assigned the task of mediating these conflicts. RFRA makes that role clear, “mandating consideration, under the compelling interest test, of exceptions to rules of general applicability.” O Centro Espirita, 546 U.S. at 436 (internal quotation marks and alteration marks omitted). Congress has instructed the judiciary to hold the entire federal regulatory apparatus to the standard of Sherbert, unless a statute specifically says otherwise.

* * *
Once a RFRA claimant makes a prima facie case that the application of a law or regulation substantially burdens his religious practice, the burden shifts to the government to justify the burden under strict scrutiny. O Centro Espirita, 546 U.S. at 428. “Congress’s express decision to legislate the compelling interest test indicates that RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the test … .” Id. at 430. Thus, in RFRA litigation, as in First Amendment litigation, “the burdens at the preliminary injunction stage track the burdens at trial.” Id. at 429.

1. For-Profit Corporations as RFRA “Persons”
RFRA’s general rule prohibits the federal government from placing substantial burdens on “a person’s exercise of religion” absent compelling justification, and only then if the burden is the least restrictive means of furthering the compelling

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 38 of 158 PageID #: 680

36

Nos. 12-3841 & 13-1077

governmental objective. As originally enacted, RFRA defined “exercise of religion” as “the exercise of religion under the First Amendment to the Constitution.” Pub. L. No. 103-141, § 5, 107 Stat. 1488, 1489 (1993). Congress amended the definition in 2000 with the enactment of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., making the definitions in the two statutes uniform. The term “exercise of religion” in RFRA is now defined by crossreference to the definition of “religious exercise” in RLUIPA: “The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Id. §§ 2000cc-5(7)(A), 2000bb-2(4). This definition is undeniably very broad, so the term “exercise of religion” should be understood in a generous sense.
RFRA does not define “person.” This brings the Dictionary Act into play.14 The definition there expressly includes corporations: “In determining the meaning of any Act of Congress, unless the context indicates otherwise[,] … the word[] ‘person’ … include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals … .” 1 U.S.C. § 1 (emphasis added). By operation of this omnibus definition, the term “person” in RFRA includes corporations, unless the context indicates otherwise.

14 The Dictionary Act is notable for its breadth. It contains general definitions and rules of construction that apply across the United States Code, prospectively and retrospectively unless otherwise indicated. See Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2110 (2002).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 39 of 158 PageID #: 681

Nos. 12-3841 & 13-1077

37

To determine whether the context “indicates otherwise,” the Supreme Court has instructed us not to stray too far from the statutory text. See Rowland v. Calif. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 199–200 (1993). “ ‘Context’ here means the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts … .” Id. at 199. The inquiry basically asks whether the definition in the Dictionary Act is a “poor fit” with the text of the statute:
Where a court needs help is in the awkward case where Congress provides no particular definition, but the definition in 1 U.S.C. § 1 seems not to fit. There it is that the qualification “unless the context indicates otherwise” has a real job to do, in excusing the court from forcing a square peg into a round hole.
The point at which the indication of particular meaning becomes insistent enough to excuse the poor fit is of course a matter of judgment … .
Id. at 200.
Nothing in RFRA suggests that the Dictionary Act’s definition of “person” is a “poor fit” with the statutory scheme. To use the Supreme Court’s colloquialism, including corporations in the universe of “persons” with rights under RFRA is not like “forcing a square peg into a round hole.” Id. A corporation is just a special form of organizational association. No one doubts that organizational associations can engage in religious practice. The government accepts that some corporations—religious nonprofits—have religious-exercise rights

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 40 of 158 PageID #: 682

38

Nos. 12-3841 & 13-1077

under both RFRA and the Free-Exercise Clause. As evidence of this, the contraception mandate exempts a class of religious organizations—i.e., churches and their integrated auxiliaries, see 45 C.F.R. § 147.131(a)—whether or not they conduct their activities in the corporate form (as many of them do). HHS also extends its “accommodation” to a broader set of religiously affiliated nonprofit corporations. See id. § 147.131(b).
Indeed, the Supreme Court has enforced the RFRA rights of an incorporated religious sect, see O Centro Espirita, 546 U.S. at 439, aff’g 389 F.3d 973, 973 (10th Cir. 2004) (en banc) (identifying the plaintiff church as “a New Mexico corporation”), and the free-exercise rights of an incorporated church, see Lukumi, 508 U.S. at 525, 547. The church corporations in these cases were not in court solely asserting the rights of their members based on associational standing; they were asserting their own rights, too.15 Accordingly, we take it as both conceded and noncontroversial that the use of the corporate form and the associated legal attributes of that status—think separate legal personhood, limitations on owners’ liability, special tax treatment—do not disable an organization from engaging in the exercise of religion within the meaning of RFRA (or the Free Exercise Clause, for that matter).
The government draws the line at religiously affiliated nonprofit corporations. That line is nowhere to be found in the

15 For the rules of associational standing, see United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553 (1996); Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977); and Ezell v. City of Chicago, 651 F.3d 684, 696 (7th Cir. 2011).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 41 of 158 PageID #: 683

Nos. 12-3841 & 13-1077

39

text of RFRA or any related act of Congress. Nor can it be found in the statute’s broader contextual purpose, assuming we were to venture beyond the textual inquiry envisioned by the Supreme Court for resolving Dictionary Act questions. The government argues that a religious/nonprofit limitation can be found by implication from judicial interpretations of two unrelated employment-discrimination statutes—namely, Title VII and the Americans with Disabilities Act (“ADA”)— both of which contain targeted exemptions for religious employers. We are not convinced.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of religion. See 42 U.S.C. § 2000e-2. Certain religious employers are exempt from this part of Title VII and may take religion into account in making employment decisions: “This subchapter shall not apply … to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion … .” Id. § 2000e-1(a). The ADA, which prohibits employment discrimination on the basis of disability, contains a similar exemption for religious employers. See id. § 12113(d)(1)–(2). Some lower courts have developed multifactor tests to determine when Title VII’s religiousemployer exemption applies; the nonprofit status of the employer is considered a relevant factor. See, e.g., Spencer v. World Vision, Inc., 633 F.3d 723, 727 (9th Cir. 2011) (en banc) (per curiam); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007); Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1343–44 (D.C. Cir. 2002) (applying a religiousemployer exemption implied by the Supreme Court as a matter of constitutional avoidance to limit the reach of the National

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 42 of 158 PageID #: 684

40

Nos. 12-3841 & 13-1077

Labor Relations Act); Killinger v. Samford Univ., 113 F.3d 196, 198–99 (11th Cir. 1997); EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 618–19 (9th Cir. 1988). Relying on this line of cases, the government argues that Congress “carried forward” a nonprofit limitation when it enacted RFRA.
Never mind that much of this caselaw postdates the enactment of RFRA. The more important point is that a handful of lower-court decisions applying an interpretive gloss to Title VII’s religious-employer exemption hardly implies that Congress meant to limit RFRA in the same way. As the Tenth Circuit noted in Hobby Lobby, the government asks us to infer from congressional silence that a “similar narrowing construction[] should be imported into” RFRA. 723 F.3d at 1130. The Tenth Circuit found this argument “strained,” id., and so do we. If Congress intended a nonprofit limitation in RFRA, surely there would be some hint of it in the statutory text.
The government also relies on the Supreme Court’s decision in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987). We do not understand why. Amos rejected an Establishment Clause challenge to Title VII’s religious-employer exemption. Id. at 335–39. The case does not advance the government’s position here.
To the contrary, the church labor-relations cases illuminate a fundamental flaw in the government’s argument—its failure to recognize that RFRA protects religious liberty more broadly than the religious-employer exemptions in Title VII and the ADA. To see how, it’s helpful to return to some first principles of free-exercise doctrine.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 43 of 158 PageID #: 685

Nos. 12-3841 & 13-1077

41

It’s well understood that the Free Exercise Clause protects “first and foremost, the right to believe and profess,” but also the right to engage in religiously motivated conduct. Smith, 494 U.S. at 877. (“The ‘exercise of religion’ often involves not only belief and profession but the performance of (or abstention from) physical acts … .”); see also Bob Jones Univ. v. United States, 461 U.S. 574, 603 (1983) (“[T]he Free Exercise Clause provides substantial protection for lawful conduct grounded in religious belief … .”); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (The “[First] Amendment embraces two concepts[]—[the] freedom to believe and freedom to act.”). This doctrine reflects the original understanding of the right. See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1488 (1990) (“[T]he term ‘free exercise’ makes clear that the clause protects religiously motivated conduct as well as belief.”).
The right to believe and profess is absolute. See Bob Jones Univ. v. United States, 461 U.S. at 603 (the Free Exercise Clause is “an absolute prohibition against governmental regulation of religious beliefs”); Sherbert, 374 U.S. at 402 (“The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such … .” (emphasis added)); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (“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 work or act their faith therein.”). Religiously motivated conduct is necessarily subject to some regulation for the essential public good. Sherbert, 374 U.S. at 403 (religiously motivated conduct may be

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 44 of 158 PageID #: 686

42

Nos. 12-3841 & 13-1077

regulated to prevent “substantial threat[s] to public safety, peace or order”).
Free-exercise problems usually arise when a law, regulation, or some action of a public official interferes with a religiously motivated practice, forbearance, or other conduct. These claims present in distinct ways, reflecting different dimensions of the right. See generally Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373, 1388–89 (1981); Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L. REV. 1465, 1505–08 (1999).
One obvious and intuitive aspect of religious liberty is the right of conscientious objection to laws and regulations that conflict with conduct prescribed or proscribed by an adherent’s faith. Sherbert, Yoder, and Thomas are the paradigm cases in this category. In Sherbert a Seventh-day Adventist was denied unemployment compensation benefits after she lost her job for refusing to work on her Sabbath day. 374 U.S. at 399–400. In Yoder Amish families challenged the application of a state compulsory-education law requiring their children to attend public school through age 16. 406 U.S. at 207–09. In Thomas a Jehovah’s Witness was denied unemployment compensation benefits after he was fired for declining a job transfer to a department that produced war materials. 450 U.S. at 709–12. In all three cases, the claimants asserted a conscientious objection to legal burdens placed on their religiously motivated conduct. In all three the Supreme Court held that the Free Exercise Clause required an exemption. See id. at 718–19; Yoder, 406 U.S. at 234–36; Sherbert, 374 U.S. at 398–99.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 45 of 158 PageID #: 687

Nos. 12-3841 & 13-1077

43

A different aspect of religious liberty protects, broadly speaking, the autonomy of the church. As the Supreme Court explained in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694, 706 (2012), this strand of religious-liberty doctrine “gives special solicitude to the rights of religious organizations” as religious organizations, respecting their autonomy to shape their own missions, conduct their own ministries, and generally govern themselves in accordance with their own doctrines as religious institutions. Id. at 704–06. The paradigm cases in this category are Hosanna-Tabor itself, which recognized the right of churches to choose their own ministers (broadly understood) and adopted a constitutional ministerial exception to laws regulating employment discrimination, see id. at 705–06, and the church-property cases, see Serbian E. Orthodox Diocese for the U.S. & Can. v. Milivojevich, 426 U.S. 696 (1976); Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440 (1969); Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94 (1952).
The church-autonomy doctrine respects the authority of churches to “select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions” free from governmental interference. Laycock, Towards a General Theory of the Religion Clauses, supra, at 1389. This dimension of religious liberty has a foothold in both Religion Clauses, see Hosanna-Tabor, 132 S. Ct. at 702, and is perhaps best understood as marking a boundary between two separate polities, the secular and the religious, and acknowledging the prerogatives of each in its own sphere. For example, in Milivojevich, a church-property case, the Court explained that

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 46 of 158 PageID #: 688

44

Nos. 12-3841 & 13-1077

the First Amendment “permit[s] hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters.” 426 U.S. at 724. When a church tribunal or other religious authority decides an internal dispute, “the Constitution requires … civil courts [to] accept th[at] decision[] as binding.” Id. at 725; see also Richard W. Garnett, A Hands-Off Approach to Religious Doctrine: What Are We Talking About?, 84 NOTRE DAME L. REV. 837, 861 (2009) (explaining that the church-autonomy doctrine recognizes that secular tribunals “lack the power to answer some questions—religious questions—whose resolution is, under an appropriately pluralistic political theory, left to other institutions”).
Two related principles are at work in these cases. First, civil authorities have no say over matters of religious governance; and second, secular judges must defer to ecclesiastical authorities on questions properly within their domain. These limitations arise from the justification for the different aspects of religious liberty secured by the Religion Clauses. See Douglas Laycock, Church Autonomy Revisited, 7 GEO. J.L. & PUB. POL’Y 253, 260–65 (2009). As the Supreme Court explained in Hosanna-Tabor:
Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 47 of 158 PageID #: 689

Nos. 12-3841 & 13-1077

45

who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits governmental involvement in such ecclesiastical decisions.
132 S. Ct. at 706.
In this way the Religion Clauses work together to protect the institutional freedom of the church “for itself, and not simply as a proxy for the religious-liberty rights of individuals,” in light of the Constitution’s ordering of the relationship between religion and government. Richard W. Garnett, Standing, Spending, and Separation: How the No-Establishment Rule Does (and Does Not) Protect Conscience, 54 VILL. L. REV. 655, 674 (2009); see also Paul Horwitz, Churches as First Amendment Institutions: Of Sovereignty and Spheres, 44 HARV. C.R.-C.L. L. REV. 79, 116–22 (2009).16

16 See also Thomas C. Berg, The Voluntary Principle and Church Autonomy, Then and Now, 2004 BYU L. REV. 1593 (2004); Gerard V. Bradley, Church Autonomy in the Constitutional Order: The End of Church and State?, 49 LA. L. REV. 1057 (1989); Kathleen A. Brady, Religious Organizations and Free Exercise: The Surprising Lessons of Smith, 2004 BYU L. REV. 1633 (2004); Richard W. Garnett, D o Churches Matter? Towards an Institutional Understanding of the Religion Clauses, 53 VILL. L. REV. 273 (2008); Christopher C. Lund, In Defense of the Ministerial Exception, 90 N.C. L. REV. 1 (2011); Howard M. Wasserman, Prescriptive Jurisdiction, Adjudicative Jurisdiction, and
(continued...)

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 48 of 158 PageID #: 690

46

Nos. 12-3841 & 13-1077

The religious-employer exemptions in Title VII and the ADA are legislative applications of the church-autonomy doctrine. By their terms the exemptions are limited to religiously affiliated employers, a limitation that makes sense in light of the rationale for the rule. The exemption is categorical, not contingent; there is no balancing of competing interests, public or private. In other words, where it applies, the churchautonomy principle operates as a complete immunity, or very nearly so. Such a strong hands-off principle isn’t justified for organizational associations that are not religiously affiliated.
In contrast, the judicial remedy in RFRA is both broader and more flexible. It covers religious organizations as such, but it does not stop there. The remedy is available to any sincere religious objector—individuals and organizations alike—and its organizational applications are not limited to religiously affiliated organizations. The exemption is comprehensive in that it applies across the United States Code and Code of Federal Regulations and restrains the conduct of all federal officials. But it can be overridden by a sufficiently strong governmental interest.
For these reasons, the cases interpreting the Title VII and ADA exemptions do not shed light on the scope of the RFRA exemption. The government’s proposed exclusion of secular, for-profit corporations finds no support in the text or relevant context of RFRA or any related statute.

16 (...continued) the Ministerial Exemption, 160 U. PA. L. REV. PENNUMBRA 289 (2012).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 49 of 158 PageID #: 691

Nos. 12-3841 & 13-1077

47

* * *
That’s enough to resolve the matter, but it’s worth briefly exploring whether RFRA’s animating purpose provides a clue that it is not meant to apply to secular, for-profit corporations. Congress was clear that RFRA codifies pre-Smith free-exercise jurisprudence—in particular, the rule of Sherbert and Yoder—so if the Supreme Court’s pre-Smith free-exercise cases categorically excluded secular, for-profit corporations, then perhaps RFRA should be understood that way, too.
We begin by reiterating two doctrinal points we made a moment ago: (1) the Free Exercise Clause protects not just belief and profession but also religiously motivated conduct; and (2) individuals and organizations—whether incorporated or not—can exercise religion. It’s common ground that nonprofit religious corporations exercise religion in the sense that their activities are religiously motivated. So unless there is something disabling about mixing profit-seeking and religious practice, it follows that a faith-based, for-profit corporation can claim free-exercise protection to the extent that an aspect of its conduct is religiously motivated.
We acknowledge the novelty of the question; the Supreme Court has never considered whether a for-profit corporation may assert a free-exercise claim. See Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641, 643 (Sotomayor, Circuit Justice 2012) (“This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders … .”). But the Court has on several occasions addressed the free-exercise rights of individuals engaged in commercial or profit-making activity.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 50 of 158 PageID #: 692

48

Nos. 12-3841 & 13-1077

We have already mentioned Thomas and Sherbert, both of which involved claimants who lost their jobs for refusing to work on days or in ways that would violate their faith. See Thomas, 450 U.S. at 709–11; Sherbert, 374 U.S. at 399–400. The cases challenged the denial of unemployment compensation benefits, but the background facts involved the loss of remunerative employment at a foundry and a mill. In other words, Eddie Thomas and Adell Sherbert were working for money yet they retained their free-exercise rights and were permitted to assert them against the denial of unemployment benefits. The Court held that Thomas and Sherbert could not be compelled to choose between their livelihoods and their faith. See Thomas, 450 U.S. at 717 (“Here, as in Sherbert, the employee was put to a choice between fidelity to religious belief or cessation of work; the coercive impact on Thomas is indistinguishable from Sherbert … .”); Sherbert, 374 U.S. at 404 (“The [unemployment compensation] ruling forces [Adell Sherbert] 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.”). If the government is correct that entering the marketplace and earning money forfeits free-exercise rights, then Thomas and Sherbert would have been decided differently.
In Braunfeld v. Brown, 366 U.S. 599, 600–02 (1961), Jewish merchants brought a free-exercise challenge against Pennsylvania’s Sunday-closing law, which put them at a competitive disadvantage based on their Sabbath. Again, if profit-making alone was enough to disqualify the merchants from bringing the claim, the Court surely would have said so. It did not.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 51 of 158 PageID #: 693

Nos. 12-3841 & 13-1077

49

Instead, the Court addressed and rejected their free-exercise claim on the merits. Id. at 608–09.
In United States v. Lee, 455 U.S. 252 (1982), an Amish farmer sought a religious exemption from the obligation to withhold and pay Social Security taxes for his employees, coreligionists who worked on his farm and in his carpentry shop. Id. at 254–55. The Amish religion holds that members of the religious community must provide for their own needy and elderly. Id. The Social Security system exempts self-employed religious objectors but not employers, so the farmer asserted a constitutional right to an exemption. Id. at 255–56. The Court held that “compulsory participation in the social security system interferes with the[] free exercise rights” of the Amish. Id. at 257. But the Court concluded that the strong public interest in the financial soundness of the Social Security system was enough to defeat the farmer’s claim for an exemption:
The tax system could not function if denominations were allowed to challenge the … system because tax payments were spent in a manner that violates their religious belief[s]. … Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.
Id. at 260.
Like the merchants in Braunfeld, the Amish farmer in Lee was engaged in farming and furniture-making not for subsistence but for profit. If moneymaking were enough to foreclose

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 52 of 158 PageID #: 694

50

Nos. 12-3841 & 13-1077

the claim, the Court would not have addressed the burden on his free-exercise rights or the public interest in the sound administration of the Social Security system. Instead, the Court gave the claim plenary review and found a compelling reason to deny an exemption.
These cases show that far from categorically excluding profit-seekers from the scope of the free-exercise right, the Supreme Court has considered their claims on the merits, granting exemptions in some and not others based on the compelling-interest test.
The government relies on a concluding statement in Lee as support for its position that profit-making is incompatible with free-exercise rights:
Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.
Id. at 261 (emphasis added).
The government apparently reads this passage as foreclosing all religious-exercise claims arising in the course of commercial activity merely because the context is commercial. That reading is both unsound and extraordinary. Unsound

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 53 of 158 PageID #: 695

Nos. 12-3841 & 13-1077

51

because it would nullify the rest of the Court’s opinion, which considered the Amish farmer’s claim on the merits even though his activities were for profit; the commercial context did not defeat the claim. And extraordinary because it would leave religious exercise wholly unprotected in the commercial sphere. At bottom, the government’s argument is premised on a far-too-narrow view of religious freedom: Religious exercise is protected in the home and the house of worship but not beyond. Religious people do not practice their faith in that compartmentalized way; free-exercise rights are not so circumscribed.
If the government’s view is correct, commonplace religious practices normally thought protected would fall outside the scope of the free-exercise right. The Jewish deli is the usual example. On the government’s understanding of religious liberty, a Jewish restaurant operating for profit could be denied the right to observe Kosher dietary restrictions. That cannot be right. There is nothing inherently incompatible between religious exercise and profit-seeking. The better reading of the concluding dictum in Lee is that it foreshadowed the coming holding in Smith eight years later. The references to “incidental burdens” and “statutory schemes binding on others” suggest as much.
In short, nothing in the Supreme Court’s free-exercise jurisprudence prior to Smith categorically forecloses RFRA claims by profit-seeking entities.

* * *

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 54 of 158 PageID #: 696

52

Nos. 12-3841 & 13-1077

For the sake of completeness, we note as well that nothing in the Court’s general jurisprudence of corporate constitutional rights suggests a nonprofit limitation on organizational freeexercise rights. Prior to Smith, and continuing to the present day, the Court has held that corporations may claim some but not all constitutional rights. See Darrell A. H. Miller, Guns, Inc.: Citizens United, McDonald, and the Future of Corporate Constitutional Rights, 86 N.Y.U. L. REV. 887, 908–11 (2011) (collecting cases).
For example, long before Citizens United reinvigorated the political-speech rights of corporations, see Citizens United v. FEC, 558 U.S. 310 (2010), the Court confirmed that corporations have free-speech rights, see, e.g., Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989); Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 8 (1986) (plurality opinion); Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980); First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 776 (1978); N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). Prior to Smith the Court held that the Fourth Amendment protected corporations from unreasonable searches and seizures. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920); Hale v. Henkel, 201 U.S. 43, 76 (1906), overruled on other grounds by Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52 (1964). Corporations qualify as persons for at least some purposes under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. See Grosjean v. Am. Press Co., 297 U.S. 233, 244 (1936); Covington & Lexington Tpk. Rd. Co. v. Sandford, 164 U.S. 578, 592 (1896). But see Nw. Nat’l Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906) (“The liberty referred to in

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 55 of 158 PageID #: 697

Nos. 12-3841 & 13-1077

53

th[e] [Fourteenth] Amendment is the liberty of natural, not artificial, persons.”). On the other hand, prior to Smith the Court excluded corporations from the Fifth Amendment privilege against self-incrimination, see Wilson v. United States, 221 U.S. 361, 383–84 (1911), and the emerging right of privacy, see United States v. Morton Salt Co., 338 U.S. 632, 652 (1950).
These cases do not yield a unifying theory of corporate constitutional rights, but Bellotti contains some language that might be read to suggest a general decisional approach: “Certain ‘purely personal’ guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the ‘historic function’ of the particular guarantee has been limited to the protection of individuals.” 435 U.S. at 778 n.14 (quoting United States v. White, 322 U.S. 694, 698–701 (1944)). And this: “Whether or not a particular guarantee is ‘purely personal’ or is unavailable to corporations for some other reason depends upon the nature, history, and purpose of the particular constitutional provision.” Id. But the Court has never elaborated.
Ultimately, we don’t need to parse the cases on corporate constitutional rights too finely. We are confronted here with a question of statutory interpretation. Our task is to determine whether prior to Smith it was established that a closely held, for-profit corporation could not assert a free-exercise claim. It was not so established. We conclude that K & L Contractors

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 56 of 158 PageID #: 698

54

Nos. 12-3841 & 13-1077

and Grote Industries are “persons” within the meaning of RFRA.17

2. Substantial Burden
Our next question is whether the contraception mandate substantially burdens the plaintiffs’ exercise of religion. Recall that “exercise of religion” means “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) (emphases added). At a minimum, a substantial burden exists when the government compels a religious person to “perform acts undeniably at odds with fundamental tenets of [his] religious beliefs.” Yoder, 406 U.S. at 218. But a burden on religious exercise also arises when the government “put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas, 450 U.S. at 718; see also Nelson v. Miller, 570 F.3d 868, 878 (7th Cir. 2009); Koger v. Bryan, 523 F.3d 789, 799 (7th Cir. 2008). Construing the parallel provision in RLUIPA, we have held that a law, regulation, or other governmental command

17 We deal here with two corporations that are both closely held and managed by the families that own them. As we have explained, the Kortes and Grotes as controlling shareholders and directors set all company policy and personally direct the activities of their corporations; as such, they are in a position to operate their businesses in a manner that conforms to their religious commitments. The same normally will not be the case when it comes to large publicly traded corporations, two hallmarks of which are the separation of ownership from control and multimember boards of directors. See 1A W ILLIAM M EADE FLETCHER, FLETCHER CYCLOPEDIA OF THE LAW O F CORPORATIONS § 70.10 (2006 rev.).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 57 of 158 PageID #: 699

Nos. 12-3841 & 13-1077

55

substantially burdens religious exercise if it “bears direct, primary, and fundamental responsibility for rendering [a] religious exercise … effectively impracticable.” Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003). The same understanding applies to RFRA claims.
Importantly, the substantial-burden inquiry does not invite the court to determine the centrality of the religious practice to the adherent’s faith; RFRA is explicit about that. And freeexercise doctrine makes it clear that the test for substantial burden does not ask whether the claimant has correctly interpreted his religious obligations. See Lee, 455 U.S. at 257; Thomas, 450 U.S. at 715–16. Indeed, that inquiry is prohibited. “[I]n this sensitive area, it is not within the judicial function and judicial competence to inquire whether the [adherent has] … correctly perceived the commands of [his] … faith. Courts are not arbiters of scriptural interpretation.” Thomas, 450 U.S. at 716. It is enough that the claimant has an “honest conviction” that what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion. Id.; see also id. at 715 (“Thomas drew a [religious] line, and it is not for us to say that the line he drew was an unreasonable one.”).
Checking for sincerity and religiosity is important to weed out sham claims. The religious objection must be both sincere and religious in nature. Cf. United States v. Seeger, 380 U.S. 163, 184–86 (1965) (military-conscription exemption applies only to objections based on sincerely held religious beliefs as opposed to philosophical views or a personal moral code). These are factual inquiries within the court’s authority and competence. But we agree with our colleagues in the Tenth Circuit that the

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 58 of 158 PageID #: 700

56

Nos. 12-3841 & 13-1077

substantial-burden test under RFRA focuses primarily on the “intensity of the coercion applied by the government to act contrary to [religious] beliefs.” Hobby Lobby, 723 F.3d at 1137. Put another way, the substantial-burden inquiry evaluates the coercive effect of the governmental pressure on the adherent’s religious practice and steers well clear of deciding religious questions.
On this understanding of substantial burden, there can be little doubt that the contraception mandate imposes a substantial burden on the plaintiffs’ religious exercise. K & L Contractors and Grote Industries must pay $100 per day per employee if they do not include coverage for contraception and sterilization in their employee health-care plans. The Kortes and the Grotes as corporate owners and managers must arrange for their companies to provide the mandated coverage. They object on religious grounds to doing so, explaining that providing this coverage would make them complicit in a grave moral wrong and would undermine their ability to give witness to the moral teachings of their church. No one questions their sincerity or the religiosity of their objection.18

18 The Catholic Church’s teaching on the sanctity of human life and the moral wrongfulness of contraception, abortion-inducing drugs, and sterilization is well documented, as is its doctrine of moral complicity and the requirements of Christian witness. See Pope John Paul II, Evangelium Vitae [The Gospel of Life] ¶¶ 58–62 (1995), available at http://www.vatican.va/ holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_25031995_ evangeliumvitae_en.html; CATECHISM OF THE CATHOLIC CHURCH ¶¶ 2258, 2270–75, 2284–87, 2366, 2370, 2399 (2d ed. 1997); Pontifical Council for Justice and Peace, Compendium of the Social Doctrine of the Church ¶¶ 62–64,
(continued...)

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 59 of 158 PageID #: 701

Nos. 12-3841 & 13-1077

57

In short, the federal government has placed enormous pressure on the plaintiffs to violate their religious beliefs and conform to its regulatory mandate. Refusing to comply means ruinous fines, essentially forcing the Kortes and Grotes to choose between saving their companies and following the moral teachings of their faith. This is at least as direct and substantial a burden as the denial of unemployment compensation benefits in Sherbert and Thomas, and the obligation to withhold and pay Social Security taxes in Lee.
The government takes a different tack on this question, arguing that the mandate’s burden on religious exercise is insubstantial because an employee’s decision to use her insurance coverage to purchase contraception or sterilization services “cannot be attributed to” the Kortes or Grotes. In a different twist on the same argument, the government also insists that any burden on the plaintiffs’ religious exercise is too “attenuated” to count as “substantial” because the provision of contraception coverage is several steps removed from an employee’s independent decision to use contraception. For support the government relies on Zelman v. Simmons-Harris, 536 U.S. 639 (2002), and Board of Regents of the University of Wisconsin System v. Southworth, 529 U.S. 217 (2000). Neither case is relevant here.

18 (...continued) 66–68, 230–33 (2005), available at www.vatican.va/roman_curia/pontifical_ councils/justpeace/documents/rc_pc_justpeace_doc_20060526_compendiodott-soc_en.html.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 60 of 158 PageID #: 702

58

Nos. 12-3841 & 13-1077

Zelman upheld Ohio’s school-voucher program against an Establishment Clause challenge because the public funds flowed to religious schools only through the private choice of the students’ parents. 536 U.S. at 651–52. Southworth rejected a free-speech challenge to a public university’s student-activity fee because the funds collected were allocated to student groups on a viewpoint-neutral basis, removing “ ‘any mistaken impression that the [student groups] speak for the [u]niversity’ ” or the objecting student. 529 U.S. at 233 (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 841 (1993)). These cases raised questions about governmental endorsement of religion (Zelman) and unwanted speech (Southworth). The degree of separation between the government and the use of the funds was important to the constitutional analysis in each case, but it’s not a relevant consideration here.19
Aside from its misplaced reliance on Zelman and Southworth, the government’s insistence that the burden is trivial or nonexistent simply misses the point of this religious-

19 At oral argument the government suggested for the first time that granting a preliminary injunction against the contraception mandate might create Establishment Clause concerns. That was far too late in the litigation to raise the argument. The Supreme Court has rejected a facial Establishment Clause challenge to RLUIPA, the parallel— albeit narrower— statutory religious exemption applicable to the States. See Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (“[W ]e hold that § 3 of RLUIPA fits within the corridor between the Religion Clauses: On its face, the Act qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause.”). The government has not advanced an argument that applying RFRA in this context violates the Establishment Clause.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 61 of 158 PageID #: 703

Nos. 12-3841 & 13-1077

59

liberty claim. The government focuses on the wrong thing—the employee’s use of contraception—and addresses the wrong question—how many steps separate the employer’s act of paying for contraception coverage and an employee’s decision to use it.
To the first point: Although the plaintiffs object on religious grounds to the use of contraception, abortifacient drugs, and sterilization, it goes without saying that they may neither inquire about nor interfere with the private choices of their employees on these subjects. They can and do, however, object to being forced to provide insurance coverage for these drugs and services in violation of their faith. As we explained in our order granting an injunction pending appeal, “[t]he religiousliberty 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.” Korte, 2012 WL 6757353, at *3.
The government’s “attenuation” argument posits that the mandate is too loosely connected to the use of contraception to be a substantial burden on religious exercise. Because several independent decisions separate the employer’s act of providing the mandated coverage from an employee’s eventual use of contraception, any complicity problem is insignificant or nonexistent. This argument purports to resolve the religious question underlying these cases: Does providing this coverage impermissibly assist the commission of a wrongful act in violation of the moral doctrines of the Catholic Church? No civil authority can decide that question.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 62 of 158 PageID #: 704

60

Nos. 12-3841 & 13-1077

To repeat, the judicial duty to decide substantial-burden questions under RFRA does not permit the court to resolve religious questions or decide whether the claimant’s understanding of his faith is mistaken. Lee, 455 U.S. at 257; Thomas, 450 U.S. at 715–16. The question for us is not whether compliance with the contraception mandate can be reconciled with the teachings of the Catholic Church. That’s a question of religious conscience for the Kortes and the Grotes to decide. They have concluded that their legal and religious obligations are incompatible: The contraception mandate forces them to do what their religion tells them they must not do. That qualifies as a substantial burden on religious exercise, properly understood.
The plaintiffs have established a prima facie case under RFRA. The government must justify the mandate under the compelling-interest test.

3. Compelling-Interest Test
RFRA requires the government to shoulder the burden of demonstrating that applying the contraception mandate “is the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). The Supreme Court has instructed us to look beyond “broadly formulated interests justifying the general applicability of government mandates” and “scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” O Centro Espirita, 546 U.S. at 431. In other words, under RFRA’s version of strict scrutiny, the government must establish a compelling and specific justification for burdening these claimants.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 63 of 158 PageID #: 705

Nos. 12-3841 & 13-1077

61

The compelling-interest test generally requires a “high degree of necessity.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2741 (2011). The government must “identify an ‘actual problem’ in need of solving, and the curtailment of [the right] must be actually necessary to the solution.” Id. at 2738 (citations omitted). In the free-exercise context, “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Yoder, 406 U.S. at 215. “[I]n this highly sensitive constitutional area, only the gravest abuses, endangering paramount interests, give occasion for permissible limitation … .” Sherbert, 374 U.S. at 406 (internal quotation marks and alteration omitted). The regulated conduct must “pose[] some substantial threat to public safety, peace[,] or order.” Id. at 403. Finally, “a law cannot be regarded as protecting an interest of the highest order … when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547 (internal quotation marks omitted).
The government identifies two public interests—“public health” and “gender equality”—and argues that the contraception mandate furthers these interests by reducing unintended pregnancies, achieving greater parity in health-care costs, and promoting the autonomy of women both economically and in their reproductive capacities. This argument seriously misunderstands strict scrutiny. By stating the public interests so generally, the government guarantees that the mandate will flunk the test. Strict scrutiny requires a substantial congruity—a close “fit”—between the governmental interest and the means chosen to further that interest. Stating the governmental interests at such a high level of generality makes it impossible

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 64 of 158 PageID #: 706

62

Nos. 12-3841 & 13-1077

to show that the mandate is the least restrictive means of furthering them. There are many ways to promote public health and gender equality, almost all of them less burdensome on religious liberty.
We will translate a bit. The apparent aim of the mandate is to broaden access to free contraception and sterilization so that women might achieve greater control over their reproductive health. We accept this as a legitimate governmental interest. Whether it qualifies as an interest of surpassing importance is both contestable and contested.
In Lee the Supreme Court held that the sound financial administration of the Social Security system was a sufficiently compelling interest to override a religious objection to withholding Social Security taxes. 455 U.S. at 260. The government has not explained why free contraception deserves to be ranked as a governmental interest akin to the Social Security system in order of importance to the public good. Let’s assume for the sake of argument that it is. Even with that generous assist, the government has not come close to carrying its burden of demonstrating that it cannot achieve its policy goals in ways less damaging to religious-exercise rights.
Indeed, the government has not even tried to satisfy the least-restrictive-means component of strict scrutiny, perhaps because it is nearly impossible to do so here. The regulatory scheme grandfathers, exempts, or “accommodates” several categories of employers from the contraception mandate and does not apply to others (those with fewer than 50 employees). Since the government grants so many exceptions already, it can

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 65 of 158 PageID #: 707

Nos. 12-3841 & 13-1077

63

hardly argue against exempting these plaintiffs.20 Moreover, there are many ways to increase access to free contraception without doing damage to the religious-liberty rights of conscientious objectors. The plaintiffs have identified a few: The government can provide a “public option” for contraception insurance; it can give tax incentives to contraception suppliers to provide these medications and services at no cost to consumers; it can give tax incentives to consumers of contraception and sterilization services. No doubt there are other options.
The government has no real response to this argument. It has not made any effort to explain how the contraception mandate is the least restrictive means of furthering its stated goals of promoting public health and gender equality. We noted this shortcoming in our orders granting injunctions pending appeal. See Grote, 708 F.3d at 855; Korte, 2012 WL 6757353, at *4. In light of this observation, we might have expected a better effort in the government’s merits briefing. We did not get it. The best the government could do was to insist that the least-restrictive-means test “has never been interpreted to require the government to subsidize private religious practices.”
That’s just an evasion of RFRA. Lifting a regulatory burden is not necessarily a subsidy, and it’s not a subsidy here. The plaintiffs are not asking the government to pay for anything.

20 In contrast, in Lee the Social Security exemption for self-employed religious persons was extremely narrow. See United States v. Lee, 455 U.S. 252, 255–56 (1982).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 66 of 158 PageID #: 708

64

Nos. 12-3841 & 13-1077

They are asking for relief from a regulatory mandate that coerces them to pay for something—insurance coverage for contraception—on the sincere conviction that doing so violates their religion. They have made a strong case that RFRA entitles them to that relief.
Our conclusion aligns us with the Tenth Circuit majority and Judge Jordan in dissent in the Third Circuit, Hobby Lobby, 723 F.3d at 1137–44; Conestoga Wood Specialties, 724 F.3d at 407–15 (Jordan, J., dissenting), and in some respects with the majority opinion in the D.C. Circuit, Gilardi, 2013 WL 5854246, at *7–15. The Third Circuit analyzed the identical issues very differently, concluding that “a for-profit, secular corporation cannot engage in the exercise of religion,” and its owners “do not have viable claims” against the contraception mandate because the mandate “does not actually require [them] to do anything.” Conestoga Wood Specialties, 724 F.3d at 388–89. The Sixth Circuit reached a similar conclusion. Autocam, 730 F.3d at 624 (“The decision to comply with the mandate falls on Autocam, not the Kennedys.”); id. at 627 (“Congress did not intend the term ‘person’ to cover entities like Autocam when it enacted RFRA.”). For reasons that should be obvious by now, we respectfully disagree.

III. Conclusion
For the foregoing reasons, we REVERSE and REMAND with instructions to enter preliminary injunctions barring enforcement of the contraception mandate against the plaintiffs.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 67 of 158 PageID #: 709

Nos. 12-3841 & 13-1077

65

ROVNER, Circuit Judge, dissenting. The court’s holding in these cases is as remarkable for its reasoning as for its result. The Kortes and the Grotes are business owners: Korte & Luitjohan Contractors is a construction firm, and Grote Industries manufactures motor vehicle turn signals, reflectors, emergency lighting, and other safety systems. Neither company has a declared religious purpose or mission. Both are subject to the full range of regulatory demands and constraints that government imposes on all such businesses. These include the Affordable Care Act’s (ACA’s) requirement that employers provide comprehensive health insurance to their employees that includes fully subsidized access to contraceptive care for women who choose to use it. The Kortes and the Grotes are Catholic and, consistent with the teachings of their religion, view the use of contraceptives as immoral. Invoking the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb1 (“RFRA”), they object to the contraception mandate of the ACA as a substantial burden on their right to the free exercise of religion.
In exempting (preliminarily) the two corporations from the contraception mandate, the court equates the business activities of these secular, for-profit firms with the religious exercise of its owners. Because the Kortes and the Grotes declare that they run the corporations in a manner consistent with their religious beliefs, the court views the burdens that government imposes on the corporations and the company health plans as burdens on the religious consciences and exercise of the individual owners. Not only that: the court attributes to the corporations religious exercise rights of their own, rights that the companies themselves can assert, as informed by the

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 68 of 158 PageID #: 710

66

Nos. 12-3841 & 13-1077

religious beliefs of their owners. Because the Kortes and the Grotes oppose the use of contraception, the companies’ obligation to include contraceptive coverage in their workplace health insurance plans is understood as a burden on the owners’ free exercise rights and in turn on the companies’ free exercise rights. The court declares off-limits any inquiry into the nature and degree of the burden imposed on these rights; instead, rewriting both the terms of RFRA and free exercise clause jurisprudence, the court declares it sufficient that the ACA compels the two corporations to comply with a requirement to which its owners object on religious grounds. Thus reasoning that the contraceptive mandate substantially burdens the free exercise rights of the individuals and their companies, the court then subjects the mandate to strict scrutiny and concludes that it fails that demanding standard.
So it is that, in the name of free exercise of religion, the court has relieved two secular corporations from a statutory obligation to provide health insurance to their employees that includes coverage of contraceptive care for the companies’ female employees. Realistically, the only religious interests at stake are those of the corporations’ owners—their faith is the source of the objection to contraception. Yet the Affordable Care Act in no way imposes on their beliefs, their worship activities, or the conduct of their personal lives. They need not use, endorse, or dispense contraception; they remain free to speak out against the use of contraception whenever and wherever they wish. In short, their own exercise of religion is wholly undisturbed. It is the corporations, as employers, which shoulder the obligations imposed by the ACA; and they need not say or do anything with respect to contraception beyond

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 69 of 158 PageID #: 711

Nos. 12-3841 & 13-1077

67

including it among the countless other medical goods and services covered by their employee health plans. The plaintiffs nonetheless object to this as facilitating the use of contraception. I would characterize it as facilitating an employee’s choice to use contraception. An employee’s choice may be inconsistent with the owners’ religious beliefs, but it is not the owners’ choice, and it does not substantially burden the exercise of their religious freedoms.
My esteemed colleagues have made the best case possible for the notion that the contraception mandate interferes with the plaintiffs’ free exercise rights; but I believe the court’s holding and rationale represent an unprecedented and unwarranted re-conception of both what the free exercise of religion entails and what constitutes a substantial burden on that exercise. The court extends a highly personal right to a secular corporation, a man-made legal fiction that has no conscience enabling belief or worship. It then deems a corporation’s duty to cover contraceptive care as an impermissible burden on the religious rights of both the corporation and its owners. It does so without considering the directness and degree of the burden on the plaintiffs’ right to the free exercise of their religion, in contravention of the plain terms of RFRA, which proscribes only substantial burdens on that right. And it permits the plaintiffs to invoke their free exercise rights offensively rather than defensively, in a way that circumscribes the rights Congress has given to employees, by permitting the corporate employers to rewrite the terms of the statutorilymandated health plans they provide to their employees. As a result, employees are left without a highly important form of insurance coverage that Congress intended them to have.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 70 of 158 PageID #: 712

68

Nos. 12-3841 & 13-1077

1.
In order to place today’s decision and its import in a broader perspective, I want to begin my analysis by posing several hypotheticals illustrating how the court’s ruling in this case might play out in other factual scenarios. Part of our responsibility as an appellate court is to consider the ramifications our precedents will have for other cases and litigants. Contraception is the current focus of nationwide litigation challenging the ACA’s employer mandate; and because the duty to include coverage for contraceptives in employee health plans implicates women, sexuality, and reproduction as well as religion, one might be tempted to assume that the issues raised in this case and the court’s holding are confined, if not to the facts in this case, then to a narrow range of circumstances. But, as the court points out, RFRA applies to “all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after” RFRA’s effective date. 42 U.S.C. § 2000bb-3(a); ante at 33. The court’s holding today has the potential to reach far beyond contraception and to invite employers to seek exemptions from any number of federally-mandated employee benefits to which an employer might object on religious grounds. The following three hypotheticals are intended to show why I think this might be so. The names and facts in these hypotheticals are of my own invention; the legal provisions are not.
1. Tom Smith is the sole owner and chief executive officer of TS-Co, a software company that employs more than 50 people and is therefore subject to the ACA. TS-Co sponsors a self-insured health care plan for its employees. Joe Wilson is an employee of TS-Co who suffers from Amyotrophic Lateral

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 71 of 158 PageID #: 713

Nos. 12-3841 & 13-1077

69

Sclerosis, or ALS, commonly known as Lou Gehrig’s Disease. ALS is a progressive neurodegenerative disease that affects nerve cells in the brain and spinal cord; the disease destroys motor neurons and with them the ability of the brain to initiate and control muscle function. Eventually, the disease leads to total paralysis. Most people with ALS die of respiratory failure or pneumonia, typically within three to five years of the onset of symptoms.
From another TS-Co employee, Smith learns that Wilson has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS. Smith is a devout Methodist who shares the United Methodist Church’s disapproval of research and therapies based on stem cells derived from human embryos. Smith does not wish to manage his company’s benefit plan in a way that conflicts with his religious beliefs; although he is concerned for Wilson’s health, he is adamantly opposed to facilitating the use of embryonic stem cells in any way. He thinks it unlikely that the company health plan will pay for the care Wilson will receive during his participation in the clinical trial, but when he raises the issue with the plan administrator, he learns that under section 1201 of the ACA (which in turn created a new section 2709 of the Public Health Service Act (“PHA”)), the health plan must cover the costs of routine patient care associated with clinical trials involving treatments for cancer and other life-threatening conditions. See 42 U.S.C. § 300gg-8. In this way, the ACA was meant to expand patient access to and participation in such

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 72 of 158 PageID #: 714

70

Nos. 12-3841 & 13-1077

clinical trials.1 Although the plan would cover only the costs of Wilson’s routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, Smith believes that by covering Wilson’s routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.
Smith brings suit under RFRA a seeking declaratory and injunctive relief relieving the company of the obligation to comply with section 2709 of the PHA, insofar as it requires the coverage of costs associated with clinical trials employing embryonic stem cell therapies. Smith argues that requiring his company’s health plan to cover the costs of any medical care associated with a treatment to which he objects on religious grounds interferes with his wish to run the company in a manner consistent with his religious convictions. Based on the court’s decision today, Smith and TS-Co would have a colorable argument that the coverage required by section 2709 imposes a substantial burden on their free exercise rights. Although the government might have an argument that section 2709 is supported by a compelling interest in the development of effective therapies for life-threatening conditions such as ALS, based on this court’s least-restrictive means analysis, a court might conclude that the government itself, in lieu of objecting employers, could pay for all costs associated with an

1 See American Cancer Society, Cancer Action Network, Fact Sheet: Affordable Care Act: Clinical Trials (“Nearly 20% of cancer patients are eligible for participation in cancer clinical trials, but enrollment among adults consistently ranges between 3-5%.”), available at http://http:// acscan.org/pdf/healthcare/implementation/factsheets/hcr-clinical-trials.pdf (last visited Nov. 7, 2013).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 73 of 158 PageID #: 715

Nos. 12-3841 & 13-1077

71

individual’s participation in a clinical trial. In the meantime, granting TS-Co an exemption from the PHA would mean that Wilson’s workplace insurance would not cover any costs associated with his participation in the clinical trial; and that, as a practical matter, might render Wilson unable to participate in the trial.
2. Bill Blasdell is the sole owner and chief executive officer of Get Out!, a corporation which operates a small chain of three outdoor-gear stores. Prior to enactment of the ACA, the company did not provide health insurance to its employees; but with 75 employees, Get Out! is now subject to the ACA’s employer mandate. Blasdell has been a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God. Consistent with that view, Christian Science historically has disapproved of most forms of conventional medicine. Nonetheless, in practice, many Christian Scientists have availed themselves of conventional medical treatments, and in recent years, the church itself has become more tolerant of conventional medicine. See, e.g., Paul Vitello, Christian Science Church Seeks Truce With Modern Medicine, New York Times A20 (Mar. 24, 2010).
Earlier in his life, Blasdell was among those Christian Scientists who embraced traditional medicine. But after witnessing his wife suffer through a brutal treatment regimen for breast cancer at a premier medical center, only to die as a result of complications from the treatment and missteps by the medical staff, Blasdell came to believe, consistent with the teachings of his church, that conventional medicine does far

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 74 of 158 PageID #: 716

72

Nos. 12-3841 & 13-1077

more harm than good. His belief was reinforced in the year following his wife’s death, when his ulcerative colitis went into remission during prayer-centered treatment at a Christian Science nursing center.
As a result of his religious convictions, Blasdell is adamantly opposed to facilitating the use of conventional medical care by his employees. He is willing for Get Out! to sponsor an employee health plan that pays for care at Christian Science nursing centers, but he believes that his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles.
After Get Out!’s request for an exemption from the employer mandate is denied, Blasdell and the company bring suit under RFRA contending that the employer mandate is a substantial burden on the free exercise of their religious beliefs. Pursuant to the court’s decision today, both Blasdell and Get Out! would have a colorable argument that compliance with the employer mandate, by facilitating company employees’ use of conventional medical treatments to which Blasdell is opposed on religious grounds, represents a substantial burden on his religious freedom and that of the corporation. And although the government, again, would no doubt urge that it has a compelling interest in pursuing universal access to healthcare, Blasdell and his firm could invoke this court’s decision for the argument that the ACA’s exemptions belie that interest, and that, in any event, the government could pursue its goal through publicly-funded healthcare, individual tax credits, or other means that do not require employers to subsidize employee healthcare that is inconsistent with their own religious beliefs.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 75 of 158 PageID #: 717

Nos. 12-3841 & 13-1077

73

3. Red Pie, Inc., sells and ships to consumers nationwide a variety of frozen, specialty pizzas. Bill and Betty Ann Bowers and their three children own and operate the firm, which has over 100 full-time employees. The Bowers belong to a church which is affiliated with the Southern Baptist Convention. The Convention’s position on marriage and sexuality may be summarized as follows:
We affirm God’s plan for marriage and sexual intimacy—one man, and one woman, for life. Homosexuality is not a “valid alternative lifestyle.” The Bible condemns it as sin. It is not, however, unforgivable sin. The same redemption available to all sinners is available to homosexuals. They, too, may become new creations in Christ.
Southern Baptist Convention, Position Statement on Sexuality, available at http://www.sbc.net/aboutus/pssexuality.asp (last visited Nov. 7, 2013). The Bowers’ local congregation endorses and promotes the same view; in the past several years, the pastor of their church has given several sermons condemning same-sex marriage, adoption by gay and lesbian parents, and the repeal of the military’s “Don’t Ask, Don’t Tell” policy. The Bowers accept and follow their church’s teaching on homosexuality. When same-sex marriage was recently legalized in their state as a result of a court decision, the Bowers, knowing that they had a number of gay and lesbian individuals in their employ and in keeping with their religious beliefs, amended the Red Pie employee benefits plan to make clear that spousal insurance benefits are not available to the same-sex spouses of Red Pie employees; as their state does not prohibit employment discrimination on the basis of sexual orientation, and

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 76 of 158 PageID #: 718

74

Nos. 12-3841 & 13-1077

because the ACA does not require employers to provide insurance coverage to employee spouses, this change was legally permitted.
Mr. and Mrs. Bowers become alarmed when they learn that one of their employees, Stan Jones, has submitted a request to take three weeks of unpaid leave under the Family and Medical Leave Act (FMLA) so that he and his husband may attend the expected birth of their child via surrogacy in California, bring the baby home, and bond with the child. See 29 U.S.C. § 2612(a)(1). The Bowers view the idea of two gay men conceiving a child by surrogacy and bringing that child into their home as an abomination to the Lord. They instruct their office manager to deny Jones’ leave request and inform him that neither they nor their company can in any way recognize or facilitate such an immoral arrangement; Jones in turn protests the denial, citing his FMLA rights. After thinking about the matter further, they decide the Bowers are so troubled that they can no longer keep Jones in their employ. The next day, they fire him.
After Jones contacts the Wages and Hours Division of the Department of Labor, the Department files suit against Red Pie under the FMLA contending that Jones was both wrongfully denied his right to parental leave under the statute and fired in retaliation for having requested FMLA leave. See 29 U.S.C. §§ 2615(a)(1), 2617(b)(2). Red Pie invokes RFRA as a defense to the Department’s suit, contending that the FMLA as applied to Red Pie in this instance would constitute a substantial burden on the free exercise rights of the corporation and its owners, as it would force them either to recognize and facilitate a parental arrangement they view as sinful or suffer substantial penalties

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 77 of 158 PageID #: 719

Nos. 12-3841 & 13-1077

75

under the FMLA for refusing to do so.2 The leave mandated by the FMLA is, of course, unpaid, and to that extent it would arguably constitute no more than a minimal burden on Red Pie’s asserted free exercise rights;3 but Red Pie could readily invoke this court’s decision for the proposition that the substantiality of the burden turns not on the degree of interference imposed on the company’s religious exercise but rather

2 Whether RFRA may be invoked as a defense in a suit between private individuals is a developing issue which has produced a split among the circuits. Compare Hankins v. Lyght, 441 F.3d 96, 103–04 (2d Cir. 2006) (2–1 decision) (holding that RFRA may be invoked in such a suit), with id. at 114–15 (Sotomayor, J., dissenting); Gen. Conference Corp. of Seventh-Day Adventists v. McGill, 617 F.3d 402, 410–12 (6th Cir. 2010); Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006), abrogated on other grounds by Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 709 n.4 (2012); and Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 834, 837–43 (9th Cir. 1999) (all holding that RFRA may not be invoked in such a suit). There is no doubt, however, that RFRA may be invoked as a defense in litigation with the government. See 42 U.S.C. § 2000bb-1(c) (“A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”); Tomic, 442 F.3d at 1042.
3 This is not to say that an employer incurs no costs as a result of the leave. Although FMLA leave is unpaid, an employer is required to continue providing health coverage to the absent employee on the same terms and conditions that would apply if he were still working, 29 U.S.C. § 2614(a)(2), and of course, the employer must bear the cost of having someone else fill in for the employee on leave even as he holds a position open for the employee in anticipation of his return from leave, § 2614(a)(1). In both respects, the employer lends considerable assistance to the employee taking leave.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 78 of 158 PageID #: 720

76

Nos. 12-3841 & 13-1077

solely on the coercive nature of the FMLA—compliance with which is mandatory on pain of litigation and significant penalties for the failure to do so. Ante at 56–57; see 26 U.S.C. §§ 4980D(a) & (b)(1), 4980H(a) & (c).
The Department of Labor potentially might fair better at the next, strict-scrutiny phase of the analysis. Certainly, in terms of the least restrictive means of supporting and promoting families, the Department would have a strong argument that there is no substitute for granting leave time to parents at critical times when their presence is most needed by their children. But that point aside, would a court deem the interests underlying the FMLA sufficiently compelling to constitute “interests of the highest order,” Wisconsin v. Yoder, 406 U.S. 205, 215 , 92 S. Ct. 1526, 1533 (1972), or “paramount interest[s]” jeopardized by “the gravest abuses,” Sherbert v. Verner, 374 U.S. 398, 406, 83 S. Ct. 1790, 1795 (1963), such that Jones’ rights under the FMLA would trump the asserted religious interests of the corporation? And, in considering whether the government has “establish[ed] a compelling and specific justification for burdening these claimants,” ante at 60 (emphasis in original), would a court assess the strength of the government’s interest in promoting familial relationships generally, or its interest in promoting the bonds between same-sex parents and their children, as that is the interest which Red Pie contends is irreconcilable with its religious interests? And if the latter, would that more specific interest qualify as a compelling interest? The outcome of that analysis is far from clear to me under today’s precedent.
These hypotheticals illustrate the uncertainty that the court’s expansive interpretation and application of RFRA

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 79 of 158 PageID #: 721

Nos. 12-3841 & 13-1077

77

brings to a number of statutory schemes in which Congress has accorded specific rights to employees (not to mention other parties), the recognition and accommodation of which a corporation, in addition to its owners, can now say burden their religious interests. By casting the mandatory provision of benefits to an employee as a substantial burden on the free exercise rights of a closely-held corporation and its owners, without considering whether compliance with the mandate directly interferes with the free exercise of religion or is at most a modest burden on a plaintiff’s free exercise rights, the court’s rationale subjects a potentially wide range of statutory protections to strict scrutiny, one of the most demanding standards known in our legal system. In some ways, this is reminiscent of the Lochner era, when an employer could claim that the extension of statutory protections to its workers constituted an undue infringement on the freedom of contract and the right to operate a private, lawful business as the owner wished. And by exempting employers from extending to employees the rights specified by statute, the government is forced to pick up the slack and take compensatory action to protect the rights of those employees; short of that, the employee of the religiously-motivated employer is left with no right at all. I doubt that this is what Congress intended when it enacted RFRA.
2.
I begin my discussion of the specific legal points presented by this appeal with where my colleagues and I agree. First, I agree that the Anti-Injunction Act poses no bar to this action. This is not a suit aimed at restraining the collection of a tax—in this case, the penalties for non-compliance with the ACA.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 80 of 158 PageID #: 722

78

Nos. 12-3841 & 13-1077

Rather, it is a direct challenge to a substantive provision of the ACA: the contraception mandate.
I am also in accord with my colleagues on standing. The government has not contested the standing of any of the plaintiffs in these cases, and I agree with my colleagues that both the corporations and their owners indeed do have standing. Because the burden of the contraception mandate falls directly on the two corporations as employers, and because the corporations contend that they have their own right to free exercise of religion which is burdened by the mandate, they have standing to challenge the mandate. See generally Clapper v. Amnesty Int’l U.S.A., 133 S. Ct. 1138, 1147 (2013). And the Kortes and the Grotes, who as the owners of these closely-held corporations assert that they express their religious beliefs in the way in which they run these corporations, have standing to assert that their own free exercise rights are burdened by the contraception mandate notwithstanding the general rule against shareholder standing. See Franchise Tax Bd. v. Alcan Aluminium Ltd., 493 U.S. 331, 336, 110 S. Ct. 661, 665 (1990) (exception to shareholder standing rule “allow[s] a shareholder with a direct, personal interest in a cause of action to bring suit even if the corporation’s rights are also implicated”); see also Gilardi v. U.S. Dep’t of Health & Human Servs., 2013 WL 5854246, at *6–*7 (D.C. Cir. Nov. 1, 2013) (op of Brown, J.); id. at *19–*22 (Edwards, J., concurring in part & dissenting in part).
This is not to say that I believe that the respective interests of the corporations and their owners are congruent. The fact that the obligations imposed by the mandate fall upon the corporation, whereas it is the individual owners—and only the

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 81 of 158 PageID #: 723

Nos. 12-3841 & 13-1077

79

individuals, in my view—who hold free exercise rights, matters a great deal to whether those rights are substantially burdened. But that is a point that goes to the merits of this lawsuit rather than the standing of either set of plaintiffs, as the court points out. Ante at 22 n.9; see also Gilardi, 2013 WL 5854246, at *19 (Edwards, J., concurring in part & dissenting in part). And that is why, as I proceed to explain, the plaintiffs—both corporate and individual—are unlikely to prevail on the merits of their RFRA claim.
3.
I turn first to the free exercise rights of the corporations. One premise underlying the RFRA claims advanced in these cases is that the interests, rights, and obligations of a closelyheld corporation are identical to those of their owners. In fact, as I have argued previously, they are distinct. In electing to do business through the corporate form, the Kortes and the Grotes have separated themselves from their companies: the corporations are independent legal entities with legal rights and obligations independent of their individual owners. Grote v. Sebelius, 708 F.3d 850, 857 (7th Cir. 2013) (dissent). That is the point of incorporation: to create a separate legal person to shoulder some of the burdens of the business. See Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163, 121 S. Ct. 2087, 2091 (2001) (“[I]ncorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.”); see also Autocam Corp. v. Sebelius, 730 F.3d 618, 623–24 (6th Cir. 2013), pet’n for cert. filed (U.S. Oct. 15, 2013) (No. 13-482); Conestoga Wood Specialties Corp. v. Sec’y U.S. Dep’t of Health & Human

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 82 of 158 PageID #: 724

80

Nos. 12-3841 & 13-1077

Servs., 724 F.3d 377, 387–88 (3d Cir. 2013), pet’n for cert. filed, 82 U.S.L.W. 3139 (U.S. Sep. 19, 1993) (No. 13-356). What that means here is that it is the two corporations which, as employers covered by the ACA, must provide health insurance to their employees that covers contraceptives. That, in turn, puts meaningful distance between the Kortes and the Grotes and the company health plans and undercuts the notion that the ACA forces the Kortes and the Grotes to facilitate a practice—the use of contraception—to which they object on religious grounds.
The distinction between a corporation and its owners explains why the plaintiffs have argued, and today the court holds, that a secular, for-profit corporation possesses its own right to the free exercise of religion. That novel idea is a way to get past the problem that the people whose faith leads them to object to the contraception mandate are not legally responsible for complying with the mandate: endow the corporate “persons” with their own right to exercise religion which they may invoke in conscientious objection to the mandate. It is an unprecedented holding, and one I believe is without legal or logical support.
I concede, as I must, that the Supreme Court has not restricted the invocation of free exercise rights solely to individuals, but has allowed—albeit with very little discussion—houses of worship, including those which have incorporated, to assert such rights. See ante at 38, citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S. Ct. 1211 (2006), and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S. Ct. 2217 (1993); see also Gilardi, 2013 WL 5854246, at *4 (op. of Brown, J.) (coll. cases); cf. Harris

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 83 of 158 PageID #: 725

Nos. 12-3841 & 13-1077

81

v. McRae, 448 U.S. 297, 321, 100 S. Ct. 2671, 2690 (1980) (noting that a free exercise claim is “one that ordinarily requires individual participation”).4 Permitting a religious organization, incorporated or not, to invoke the Free Exercise Clause makes sense as a matter of pragmatism if not legal theory. A religious association is often as well if not better situated as the individuals who make up the association to assert the relevant religious interests: the association can speak on behalf of all of its members; it likely has resources to pursue legal relief that individual members do not; it can speak authoritatively on matters of religious dogma; it may be the association that owns property and other assets affected by the challenged government action; and in many instances, the law or other government action being challenged intrudes directly on the collective worship activities of the association itself. E.g., Church of the Lukumi Babalu Aye, 508 U.S. at 534–35, 113 S. Ct. at 2227–28 (challenged ordinances restricted practices which were central to worship service); see also Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d 1295, 1304 (11th Cir. 2006) (incorporated church had standing to assert, inter alia,

4 Of the cases cited by this court and by the District of Columbia Circuit in Gilardi, only Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 105 S. Ct. 1953 (1985), actually says anything about standing. In a footnote, the Court in Alamo Found. said simply, “The Foundation also has standing to raise the free exercise claims of the associates, who are members of the religious organization as well as employees under the Act.” Id. at 303 n.26, 105 S. Ct. 1962 n. 26. The Court was thus plainly relying on the doctrine of associational standing rather than on any notion that the Foundation possessed independent free exercise rights. The Court’s citation to N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 458–59, 78 S. Ct. 1163, 1169–70 (1958), removes any doubt in that regard.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 84 of 158 PageID #: 726

82

Nos. 12-3841 & 13-1077

free exercise clause challenge to local zoning ordinance which interfered with church’s relocation); In re Young, 82 F.3d 1407, 1416 (8th Cir. 1996) (church had standing to assert free exercise rights of debtors in challenge to bankruptcy court order which directed church to return funds debtors had donated to church prior to declaring bankruptcy; debtors were not party to adversary proceeding seeking return of funds and could not assert their free exercise rights in another forum, and interests of church and its members were sufficiently similar that church could effectively represent their free exercise rights), judgment vacated & remanded on other grounds, 521 U.S. 1114, 117 S. Ct. 2502 (1997), judgment reinstated, 141 F.3d 854 (8th Cir. 1998); Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 521–23 (9th Cir. 1989) (church had standing to pursue free exercise challenge to government surveillance of its membership); Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193, 199 (5th Cir. 1984) (incorporated church had personal stake in free exercise challenge to statute proscribing possession and use of peyote, “because enforcement of that statute will directly affect the freedom with which its members may fulfill their professed religious commitment”); Church of Scientology of California v. Cazares, 638 F.2d 1272, 1279–80 (11th Cir. 1981) (church had standing to assert free exercise rights of its membership in civil rights suit alleging town mayor had unlawfully harassed church and its members).
Still, although a religious organization enjoys associational standing to represent the free exercise rights of its members, see United Food & Commercial Works Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551–53, 116 S. Ct. 1529, 1534 (1996); Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333,

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 85 of 158 PageID #: 727

Nos. 12-3841 & 13-1077

83

342–44, 97 S. Ct. 2434, 2441–42 (1977); Warth v. Seldon, 422 U.S. 490, 511, 95 S. Ct. 2197, 2211 (1975), I question whether it has free exercise rights of its own. Would a defunct church that no longer has any members but still owns property and other assets be able to claim free exercise rights in its own right, for example? The Supreme Court, while allowing incorporated religious bodies to assert free exercise rights, has yet to fully explain why, let alone delineate what types of corporations, if any, can independently assert free exercise rights. There are reasons to doubt that a corporation, whatever its nature, has such rights.
Not all rights that the Constitution accords to a person are extended to corporations. The Supreme Court has recognized that “[c]orporate identity has been determinative in several decisions denying corporations certain constitutional rights, such as the privilege against compulsory self-incrimination.” First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 778 n.14, 98 S. Ct. 1407, 1416–17 n.14 (1978). Bellotti went on to explain:
[C]ertain “purely personal” guarantees … are unavailable to corporations and other organizations because the “historic function” of the particular guarantee has been limited to the protection of individuals. United States v. White, 322 U.S. 694, 698–701, 64 S. Ct. 1248, 1251–52 (1944). Whether or not a particular guarantee is “purely personal” or is unavailable to corporations for some other reason depends on the nature, history, and purpose of the particular constitutional provision.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 86 of 158 PageID #: 728

84

Nos. 12-3841 & 13-1077

Ibid; see also Browning-Ferris. Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 284–85, 109 S. Ct. 2909, 2925–26 (1989).
I have been struck in reviewing the handful of decisions granting corporations free exercise rights (and for that matter, the plaintiffs’ briefs in this case) by how wanting they are in articulating a substantive, affirmative explanation for why any type of corporation, let alone a secular, for-profit corporation, should be accorded religious rights. E.g., Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1135 (10th Cir. 2013) (“[W]e cannot see why an individual operating for-profit retains Free Exercise protections but an individual who incorporates—even as the sole shareholder—does not, even though he engages in the exact same activities as before.”), pet’n for cert. filed, 82 U.S.L.W. 3139 (U.S. Sep. 19, 2013) (No. 13-354). My colleagues see no reason to think that Congress meant to preclude such corporations from asserting rights under RFRA, ante at 53–54, but I think this gets things backward. Given that the Supreme Court has never recognized that secular corporations have free exercise rights, I think it is more accurate to say that there is no reason to think Congress meant to take the novel step of extending free exercise rights to such corporations when it enacted RFRA.
Perhaps the best argument in favor of according free exercise rights to corporations is that the right to free speech already has been recognized as among those rights that corporations enjoy. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 342, 130 S. Ct. 876, 899–900 (2010) (coll. cases); Bellotti, 435 U.S. at 780–81, 98 S. Ct. at 1417–18 (coll. cases). But beyond the fact that the free exercise clause, like the free speech clause, resides in the First Amendment, I find little, if anything, in the

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 87 of 158 PageID #: 729

Nos. 12-3841 & 13-1077

85

speech cases that speaks to the nature of religion and why corporations, as a matter of history and logic, should be able to assert free exercise rights. See Conestoga Wood Specialties, 724 F.3d at 386 (noting distinct treatment of free speech and free exercise clauses in Supreme Court jurisprudence); Gilardi, 2013 WL 5854246, at *5 (op. of Brown, J.); Autocam, 730 F.3d at 627–28. Corporations, because they have property, financial, and political interests, of course have a free speech interest in protecting and promoting those interests and in pursuing their agendas, be their stated goals charitable, religious, political, or profit-making. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561–62, 100 S. Ct. 2343, 2349 (1980) (commercial speech); Riley v. Nat’l Fed. of the Blind of N.C., Inc., 487 U.S. 781, 787–89, 108 S. Ct. 2667, 2672–73 (1988) (charitable solicitation); Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Straton, 536 U.S. 150, 160–61, 122 S. Ct. 2080, 2086–87 (2002) (religious speech); Citizens United, 558 U.S. at 342–43, 130 S. Ct. at 900 (political speech). Beyond those parochial interests, Bellotti (which struck down a law prohibiting a corporation from making expenditures to influence the outcome of any public referendum other than one which directly affected the property, business, or activities of the corporation), stressed the core First Amendment interest in a robust dialogue on issues of public concern, an interest which extends beyond a particular speaker’s wish to express his views to include the public’s right to hear his views and those of others. 435 U.S. at 776–77, 98 S. Ct. at 1415–16. The Court added that “[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its sources, whether corporation, association, union,

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 88 of 158 PageID #: 730

86

Nos. 12-3841 & 13-1077

or individual.” Id. at 777, 98 S. Ct. at 1416. Decisions recognizing the speech rights of corporations thus rest “not only on the role of the First Amendment in fostering individual selfexpression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.” Id. at 783, 98 S. Ct. at 1419.
Religion, by contrast, is a personal undertaking. Conestoga Wood Specialties, 724 F.3d at 385, 388. Certainly there is a collective societal interest in protecting religious liberty, and religion can and has influenced the public sphere in positive ways. See Lynch v. Donnelly, 465 U.S. 668, 674–78, 104 S. Ct. 1355, 1360–61 (1984) (recognizing longstanding role of religion in American life). But religious faith is, by its nature, an intensely individual experience, and for the reasons that follow, I believe it likely is one of those “purely personal” constitutional rights that the Supreme Court will not extend to corporations—certainly not to secular, for-profit corporations.
The fact that a corporation qualifies as a person under the Dictionary Act, 1 U.S.C. § 1, see ante at 36; Hobby Lobby Stores, 723 F.3d at 1129, 1132, is by no means dispositive. RFRA bestows its protection upon “[a] person whose religious exercise has been burdened.” § 2000bb-1(c) (emphasis mine). Thus, “the focus on personhood is too narrow; instead, we must construe the term ‘person’ together with the phrase ‘exercise of religion.’” Gilardi, 2013 WL 5854246, at *2 (op. of Brown, J.); see also Autocam, 730 F.3d at 626. In other words, we must consider whether it is possible for a corporation to exercise religion.
The First Amendment, of course, does not define “religion.” More than a century ago, the Supreme Court said that “[t]he

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 89 of 158 PageID #: 731

Nos. 12-3841 & 13-1077

87

term ‘religion’ has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.” Davis v. Beason, 133 U.S. 333, 342, 10 S. Ct. 299, 300 (1890), abrogated on other grounds by Romer v. Evans, 517 U.S. 620, 634, 116 S. Ct. 1620, 1628 (1996); see also Cnty. of Allegheny v. A.C.L.U. Greater Pittsburgh Chapter, 492 U.S. 573, 109 S. Ct. 3086 (1989) (Stevens, J., concurring in part & dissenting in part) (noting that “religion” as used in establishment clause was “understood primarily to mean ‘[v]irtue, as founded upon reverence of God, and expectation of future rewards and punishments,’ and only secondarily ‘[a] system of divine faith and worship as opposite to others.’” (quoting S. Johnson, A DICTIONARY OF THE ENGLISH LANGUAGE (7th ed. 1785)). In Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 688 n.5 (7th Cir. 1994), we set forth a “general working definition of religion” for purposes of the free exercise clause that includes “any set of beliefs addressing matters of ultimate concern occupying a place parallel to that filled by God in traditionally religious persons.” (quoting Welsh v. United States, 398 U.S. 333, 340, 90 S. Ct. 1792, 1796 (1970)) (internal quotation marks and ellipsis omitted). I note that the Second Circuit, in attempting to define the same term, invoked the renowned philosopher, psychologist, and professor William James, who described religion as “the feelings, acts, and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine.” United States v. Moon, 718 F.2d 1210, 1227 (2d Cir. 1983) (quoting Wm. James, THE VARIETIES OF RELIGIOUS EXPERIENCE: A STUDY IN HUMAN NATURE 31 (1910)); see also Patrick v. LeFevour, 745 F.2d 153, 158 (2d Cir. 1984). Each

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 90 of 158 PageID #: 732

88

Nos. 12-3841 & 13-1077

of these definitions references an individual’s understanding of his relationship to a divine being, a necessarily personal and subjective viewpoint. In that regard, they are consistent with the views of both James Madison, a drafter of the First Amendment, and Thomas Jefferson, who drafted its predecessor, Virginia’s Bill for Religious Freedom, in 1779 (the bill was eventually adopted by the Virginia Assembly in 1786). Madison, in his 1785 Memorial and Remonstrance Against Religious Assessments, wrote that he opposed Patrick Henry’s proposed Virginia bill to levy a tax for the support of religion on fifteen grounds, the first of which being:
1. Because we hold it for a fundamental and undeniable truth, “that religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence. The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 91 of 158 PageID #: 733

Nos. 12-3841 & 13-1077

89

must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of a particular Civil Society do it with a saving of his allegiance to the Universal Sovereign … .
See Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 64, 67 S. Ct. 504, 535 (1947) (App. to dissent of Rutledge, J.) (quoting 2 THE WRITINGS OF JAMES MADISON 183-91 (Gaillard Hunt ed. 1901)), also available at http://religiousfreedom.lib.virginia.edu/ sacred/madison_m&r_1785.html (last visited Nov. 7, 2013). Madison’s articulation of religion as something that must be “left to the conviction and conscience of every man” obviously describes a highly personal experience of thought and belief. Likewise, Jefferson, in his 1802 letter to the Danbury Baptists, described religion in terms of individual conscience:
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of con-

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 92 of 158 PageID #: 734

90

Nos. 12-3841 & 13-1077

science, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
Letter from President Thomas Jefferson to Nehemiah Dodge, et al., Danbury Baptist Association (Jan. 1, 1801), reproduced in Braunfeld v. Brown, 366 U.S. 599, 604, 81 S. Ct. 1144, 1146 (1961) (quoting 8 WORKS OF THOMAS JEFFERSON 113 (A. Lipscomb & A. Bergh eds. 1905)), also available at http://presspubs.uchicago.edu/founders/documents/amendI_ religions58.html (last visited Nov. 7, 2013).
Such remarks are consistent with the historical underpinnings of the free exercise clause. Neither the congressional record underlying the enactment of the First Amendment nor the records of the state legislatures which subsequently ratified the amendment provide any help in ascertaining what legislators meant by “religion” and the free exercise thereof. See Michael W. McConnell, The Origins & Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1481, 1483, 1485 (1990); Vincent Phillip Muñoz, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress, 31 HARV. J. L. & PUB. POL. 1083 (2008). But there are two reference points that reinforce the notion that religion was understood to be a matter of personal conscience.
First, by 1789, the constitutions of all thirteen states, save Connecticut, included religious liberty provisions, and many referenced the right as the freedom to worship one’s God according to the dictate’s of one’s conscience. See McConnell, Origins & Historical Understanding, 103 HARV. L. REV. at 1457 n.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 93 of 158 PageID #: 735

Nos. 12-3841 & 13-1077

91

242 (reproducing text of state provisions); City of Boerne v. Flores, 521 U.S. 507, 553–54, 117 S. Ct. 2157, 2180 (1997) (O’Connor, J., dissenting) (discussing examples of such provisions). New Hampshire’s 1784 constitution, for example, provided that “[e]very individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason”; and the constitutions of Delaware, Massachusetts, New Jersey, North Carolina, Pennsylvania, and Virginia all contained very similar language. See McConnell, Origins & Historical Understanding, 103 HARV. L. REV. at 1456, 1457 n. 242. Other constitutions—those of New York and South Carolina—separately described the protected freedom of religion and then referred to the “liberty of conscience” thereby guaranteed. See id. “Conscience” was used in still other ways by the provisions of other state constitutions. See id.
These state provisions set the stage for the drafting, debate, and adoption of the First Amendment’s free exercise clause. The clause as proposed and adopted by the House of Representatives incorporated language recognizing “freedom of conscience”; but the version adopted by the Senate, by the ensuing conference committee, and which was submitted to and ratified by the States, omitted that language. See McConnell, Origins & Historical Understanding, 103 HARV. L. R. at 1481–84. It is not clear why “conscience” was omitted from the adopted version of the free exercise clause, but it is doubtful that the elimination was meant to signify a different understanding of what the clause protected. As Professor McConnell and others observe, “freedom of religion” and “freedom of conscience” were terms that were used interchangeably in discussions of religious liberty. E.g., McConnell,

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 94 of 158 PageID #: 736

92

Nos. 12-3841 & 13-1077

Origins & Historical Understanding, 103 HARV. L. REV. at 1488, 1493–94; Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 GEO. WASH. L. REV. 915, 933–34 & n.80 (1992). McConnell suggests that “rights of conscience” was dropped either to eliminate a redundancy, to the extent it signified the same thing as the free exercise of religion, or to emphasize that it was only the freedom of religious conscience, as opposed to the freedom of nonreligious belief, that was meant to be protected. McConnell, Origins & Historical Understanding, 103 HARV. L. REV. at 1488–96. Either way, it is clear that the clause was intended to protect the exercise of religious conscience. Id. at 1495–96. And as shown by both the state provisions addressing the freedom of religion and the other contemporaneous writings I have cited, the exercise of religious conscience was understood to be a matter between the individual and his God—not, perhaps, in the more modern sense of believing whatever one wants, but rather as a reflection that the individual owed his or her obedience on moral matters directly to God. Id. at 1498–99; Hamburger, A Constitutional Right of Religious Exemption, 60 GEO. WASH. L. REV. at 933, 938. The understanding that the exercise of religion was a matter of the individual’s relationship with and obedience to God was also consistent with the multiplicity of minority religions practiced in the United States by the second half of the 18th century, and a consensus that the country should move away from a Colonial history of officially established religions (and officially disfavored religions) toward religious pluralism. Id. at 946.
All of this reinforces what one would otherwise intuit about religion: that it is inextricably intertwined with characteristics

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 95 of 158 PageID #: 737

Nos. 12-3841 & 13-1077

93

that are uniquely human: conscience, belief, faith, and devotion. Religious beliefs have to do with such fundamental questions as the nature of mankind, where we came from, our place in the world, what happens when we die, and our relationships with and obligations to other people. Only the human mind can entertain such questions.
A corporation is a legal construct which does not have the sentience and conscience to entertain such ultimate questions. “In the words of Chief Justice Marshall, a corporation is ‘an artificial being, invisible, intangible, and existing only in contemplation of law.’” Browning-Ferris Indus. of Vt. v. Kelco Disposal, Inc., supra, 492 U.S. at 284, 109 S. Ct. at 2925 (quoting Trustees of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 636 (1819)). It is a creature of man, not of God. It “believes,” if it can be said to believe anything, only what the people who found, own, and/or manage the corporation believe. See Ira C. Lupu, Keeping the Faith: Religion, Equality & Speech in the U.S. Constitution, 18 Conn. L. Rev. 739, 766 (1986) (“By their nature, institutions cannot have a conscience or faith.”); Citizens United, 558 U.S. at 466, 130 S. Ct. at 972 (Stevens, J., concurring in part & dissenting in part) (“It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.”); Conestoga Wood Specialties, 724 F.3d at 385; Gilardi, 2013 WL 5854246, at* 18 (Edwards, J., concurring in part & dissenting in part); cf. Fleck & Assocs., Inc. v. City of Phoenix, an Ariz. Muni. Corp., 471 F.3d 1100, 1105 (9th Cir. 2006) (holding corporation does not possess right recognized in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003), to make autonomous choices in intimate relations free of government interference: “Corporations are not self-defining autonomous

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 96 of 158 PageID #: 738

94

Nos. 12-3841 & 13-1077

creatures worthy of respect and dignity in the relevant sense.”).
Indeed, it strikes me as potentially demeaning to religious faith to say that a corporation should be said to possess the same right to free exercise of religion that a human being enjoys in this country. Inextricably bound as it is with a person’s sense of himself, his origins, the world, and what life is, religious belief (including the lack of such belief) is a defining trait of humankind; and this is one reason why we view it as a core component of individual freedom: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 851, 112 S. Ct. 2791, 2807 (1992); see also Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 407–08 (E.D. Pa. 2013); Korte v. U.S. Dep’t of Health & Human Servs., 912 F. Supp. 2d 735, 743–44 (S.D. Ill. 2012); Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012), rev’d en banc, 723 F.3d 1114. To say, as the court does today, that the right to exercise one’s religious faith may be asserted on the same terms by a legal construct—an incorporated currency exchange, accounting firm, or automobile repair shop, for example—as by a human being, is, to my mind at least, irreconcilable with the very essence of religious faith and, for that matter, humankind.
Perhaps there are good reasons to extend the right of free exercise to religious organizations, including not-for-profit corporations organized to pursue religious ends. See Conestoga

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 97 of 158 PageID #: 739

Nos. 12-3841 & 13-1077

95

Wood Specialties, 724 F.3d at 386 (noting that churches are the “means by which individuals practice religion”); see also Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 344–45, 107 S. Ct. 2862, 2872–73 (1987) (Brennan, J., concurring in the judgment) (recognizing that potential for government to chill religious exercise is greatest with respect to not-for-profit activities). As I have said, it is not entirely clear to me why even this step is necessary given the associational standing of such entities to assert the free exercise rights of their members. But, at the least, those entities are defined by a religious purpose, and so extending to them the protections of the free exercise clause could be seen as consistent with the purpose of that clause. But let us be clear: we are in this case being asked to extend the right beyond not-forprofit religious corporations to corporations not organized for any purpose connected with religion. See Conestoga Wood Specialties, 724 F.3d at 385 (“We will not draw the conclusion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit, secular corporations can exercise religion.’”); accord Autocam, 730 F.3d at 627; see also Gilardi, 2013 WL 5854246, at *5 (opinion of Brown, J.) (“No such corpus juris exists to suggest a free-exercise right for secular corporations.”); Hobby Lobby, 723 F.3d at 1168, 1169 (Briscoe, C.J., concurring in part & dissenting in part) (“during the 200-year span between the adoption of the First Amendment and RFRA's passage, the Supreme Court consistently treated free exercise rights as confined to individuals and non-profit religious organizations”; and “not a single case, until now, has extended RFRA’s protections to for-profit corporations”).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 98 of 158 PageID #: 740

96

Nos. 12-3841 & 13-1077

Certainly I agree that the wish to profit does not automatically disqualify an individual from asserting religious interests. See ante at 47–51; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501–02, 72 S. Ct. 777, 780 (1952); Beckwith Elec. Co. v. Sebelius, 2013 WL 3297498, at *11 (M.D. Fla. June 25, 2013) (Kovachevich, J.). Individuals often have multiple reasons for acting, and simply because they have reasons in addition to a religious motive does not disqualify them from asserting free exercise rights. But that does not answer the question whether a corporation —again, an invention of the law—should be accorded religious rights, particularly when it is not organized for religious ends.5

5 The majority postulates that if a for-profit business cannot assert free exercise rights, then theoretically a Jewish restaurant could be denied the right to observe dietary restrictions. Ante at 51. Three responses come to mind. First, the owner and operator of the restaurant, assuming that he is an observant Jew, might well have a meritorious contention that his own religious exercise is directly and substantially burdened by having to handle and serve non-kosher food; as I have said, I do not believe that the profit-motive disqualifies the owner from asserting his religious interests. Second, to the extent the restaurant’s target clientele is Jewish, the business might have third-party standing to assert the free exercise rights of its customers. See Craig v. Boren, 429 U.S. 190, 194–97, 97 S. Ct. 451, 455–57 (1976) (vendor of “non-intoxicating” 3.2% beer had third-party standing to assert the equal protection rights of 18-20 year-old male customers, who were proscribed by state law from being sold beer whereas females of same age were not); see also, e.g., Carey v. Population Servs., Int’l, 431 U.S. 678, 683–84, 97 S. Ct. 2010, 2015 (1977) (distributor of contraceptive devices); Doe v. Bolton, 410 U.S. 179, 188, 93 S. Ct. 739, 745 (1973) (physicians providing abortion services). Third, to bring that hypothetical into line with facts of this case, the relevant question would be whether the free exercise rights of
(continued...)

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 99 of 158 PageID #: 741

Nos. 12-3841 & 13-1077

97

On this point, I would also note the significance of the procedural posture this case is in. The plaintiffs are seeking preliminary injunctive relief. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Resources Def. Council, 555 U.S. 7, 24, 129 S. Ct. 365, 376 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689–90, 128 S. Ct. 2207, 2219 (2008)); see also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865, 1867 (1997) (describing preliminary injunction as “extraordinary and drastic remedy”) (quoting 11A C. Wright, A. Miller & M. Kane, Fed. Prac. & Proc. § 2948 at 129–30 (2d ed. 1995)). The burden, of course, is on the plaintiffs as the movants to make a clear showing demonstrating their entitlement to such relief. See id.; Christian Legal Soc’y v. Walker, 453 F.3d 853, 870 (7th Cir. 2006) (quoting Goodman v. Ill. Dep’t of Fin. & Prof’l Regulation, 430 F.3d 432, 437 (7th Cir. 2005)); Chicago Dist. Council of Carpenters Pension Fund v. K&I Constr., Inc., 270 F.3d 1060, 1064 (7th Cir. 2001). The record at this stage of the litigation is, to put it generously, slender in terms of evidence illuminating the asserted religious interests of the two corporate plaintiffs and how those interests would be burdened by including coverage for contraceptives in their

5 (...continued) the kosher restaurant or its owners might somehow be substantially burdened by the private choice that a restaurant employee makes to consume non-kosher food. See Jonathan D. Sarna, Constitutional Dilemma on Birth Control, FORWARD.COM (March 16, 2012) (“We all might agree that kosher delis should not be coerced into selling ham, but hopefully we would also all agree that a deli’s employees and customers should not be penalized for choosing to consume it.”), http://foward.com/articles/ 152606/constitutional-dilemma-on-birth-control/ (last visited Nov. 7, 2013). For the reasons I set forth below, I do not believe they would be.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 100 of 158 PageID #: 742

98

Nos. 12-3841 & 13-1077

employee health care plans. I am thus far short of convinced that Grote Industries and Korte & Luitjohan Contractors have demonstrated a clear entitlement to preliminary injunctive relief protecting whatever free exercise rights they might have. Hobby Lobby, 723 F.3d at 1164–65 (Briscoe, C.J., concurring in part & dissenting in part); id. at 1183–84 (Matheson, J., concurring in part & dissenting in part). The notion that any type of corporation may possess its own free exercise rights is itself far from a settled proposition; and the plaintiffs’ claim calls for a wholly unprecedented extension of such rights to secular, forprofit corporations.
There are, finally, significant logical difficulties posed by attributing religious rights to secular corporations. Whatever religious rights a corporation might theoretically exercise can only come from the people who establish, own, and manage a corporation. See Conestoga Wood Specialties, 724 F.3d at 385 (“General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion.”) (quoting Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d at 1291). And here, no one is saying that Korte & Luitjohan Contractors and Grote Industries are Catholic corporations; instead, I understand the individual plaintiffs to be saying that they run the corporations in a way that is consistent with, and expresses, the principles of their Catholic faith. But this poses some challenges in defining the religious beliefs and rights of the corporation.
First, to the extent that a corporation’s religious principles and identity derive from its owners, what if the owners have diverse beliefs, diverse degrees of devotion, and diverse notions as to whether and how the corporation ought to reflect

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 101 of 158 PageID #: 743

Nos. 12-3841 & 13-1077

99

their religious beliefs? See Harris v. McRae, supra, 448 U.S. at 320–21, 100 S. Ct. at 2690 (noting that where individual church members hold diversity of religious views as to challenged law, church itself lacks associational standing to claim infringement on their free exercise rights); cf. Gilardi, 2013 WL 5854246, at *22 (Edwards, J., concurring in part & dissenting in part) (noting extent to which theory that religious rights of corporate owners are burdened by requirement imposed on corporation with which they are inextricably bound tuns on unanimity of owners’ beliefs; “there are no minority shareholders with different views”). What if, for example, one of a corporation’s two equal owners is Catholic and the other is Protestant, Muslim, Jewish, or an atheist—are the beliefs of one or both attributed to the corporation, and if the beliefs of only one count, which does? Are the beliefs a conglomeration or neither? Or suppose that both owners are Catholic, but only one of them claims that his beliefs are burdened by some legal requirement (like the mandate at issue here) imposed on the company, whereas the other professes either indifference or support for that requirement. Are the beliefs of the one owner alone sufficient to define those of the corporation? See Elizabeth Sepper, Contraception and the Birth of Corporate Conscience, 17–18 (Wash. Univ. St. Louis Sch. of Law Legal Studies Research Paper Series, Paper No. 13-07-01) (July 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 2289383, 22 AM. J. GENDER SOC. POL’Y & L. (forthcoming 2014) (discussing practical and doctrinal difficulties posed by treating corporation as alter ego of owners for purposes of free exercise claim).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 102 of 158 PageID #: 744

100

Nos. 12-3841 & 13-1077

Second, suppose that the company’s ownership changes. What happens then to the beliefs we have attributed to the corporation based on its ownership? Are challenges such as the one presented in this case subject to re-litigation every time there is a change in corporation ownership?
Third, are the religious beliefs of corporate owners solely determinative of the corporation’s religious principles? Suppose, for example, that a corporation’s owners have entirely entrusted the management of the corporation to its longtime CEO, who is the public face of the corporation and who also happens to have strongly held religious beliefs about the way in which the corporation should be run. Are her beliefs attributable to the corporation? Or suppose that the owners of a corporation have no professed religious interest in the way in which a corporation is run, but the focus of the corporation is on serving members of a particular religion—selling kosher or halal food products, for example. See ante at 51. Can the corporation be said to hold the religious beliefs of its target market, even if its owners and managers do not?
At oral argument, Grote Industries’ counsel conceded that if ownership of the company changed, as by death and inheritance, then a court might have to revisit the nature of the corporation’s asserted religious interests. But why is that true if the corporation has its own free exercise rights? By permitting a corporation to assert its own religious rights, we are, I would think, saying that the corporation may possess such rights independent of what its owners believe and assert; a change in ownership by itself would theoretically portend nothing about the status of the corporation’s religious interests.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 103 of 158 PageID #: 745

Nos. 12-3841 & 13-1077

101

The court has also limited its holding today to closely-held corporations. The reasons for that limitation are both pragmatic and obvious: When a company is owned and managed by a small number of people, it is easy to appreciate the overlap between the interests of owners and corporation. Thus, a firm that is owned and operated by a family united in its religious beliefs presents the strongest case for making the type of free exercise claim presented here. But if a corporation has free exercise rights because the Dictionary Act suggests it is among the “persons” to which RFRA grants the right to make such a claim, ante at 54 n.17, and if any distinctions between religious and secular corporations do not matter, ante at 47–54, then why does a corporation of large, diverse, or even public ownership not have free exercise rights also? And how would the beliefs of a public corporation be determined—by a vote at the annual shareholders’ meeting, for example?
Although the court has held that Korte & Luitjohan Contractors and Grote Industries have free exercise rights, what it is saying, in the end, is that it is the religious beliefs of the Kortes and Grotes that matter; the corporations, in effect, embody the expression of their beliefs. See ante at 3, 59–60; see also Autocam, 730 F.3d at 620 (noting that plaintiffs characterize their corporation as “the business form through which [they] endeavor to live their vocation as Christians in the world”). Holding that the two corporations have their own religious interests is, as I said at the start, merely a means of circumventing the problem that while it is the beliefs of the Kortes and the Grotes that are at issue here, the duties imposed by the ACA upon the corporations do not significantly burden the free

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 104 of 158 PageID #: 746

102

Nos. 12-3841 & 13-1077

exercise rights of the Kortes and Grotes themselves. I turn to that point next.
4.
RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(a) & (b). By its reference to substantial burdens, RFRA expressly calls for a qualitative assessment of the burden that a challenged statute or other government action imposes on an individual’s exercise of religion. As I discuss below, courts have long engaged in such assessments, distinguishing between direct and indirect, and between minor and meaningful burdens on the exercise of religion. Yet the court today rejects any such inquiry, departing from both historical practice and the language of RFRA.
Following the Tenth Circuit’s lead in Hobby Lobby, the majority rejects any assessment of how direct or attenuated the burden imposed on the plaintiff’s religious practices may be, ante at 57–60, reasoning that it is the equivalent of asking whether the burdened religious practice is central to the plaintiff’s faith or whether the plaintiff is interpreting his religious beliefs correctly, ante at 55–56. Instead, the majority holds that the pertinent inquiry is whether the penalties for noncompliance with the government’s mandate exert a sufficiently coercive influence on the plaintiffs. Ante at 56 (citing Hobby Lobby, 723 F.3d at 1137). This single-minded focus on the coercive aspect of the mandate is yet another means of

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 105 of 158 PageID #: 747

Nos. 12-3841 & 13-1077

103

getting past the point that a number of courts have made previously: that because the mandate is imposed on the corporate employers rather than the owners themselves, and because it does not require the owners themselves to do anything in violation of their religious faith, it does not directly and substantially burden the owners’ religious practices. See Grote, 708 F.3d at 858–59 (dissent) (coll. cases); see also Gilardi, 2013 WL 5854246, at *29–*31 (Edwards, J., concurring in part & dissenting in part). Per the majority’s view, the individual plaintiffs need only cite an obligation imposed on the corporations that is inconsistent with their own religious beliefs and practices; so long as the corporations are coerced into compliance (as by the prospect of substantial fines if they do not comply) that is enough to establish a substantial burden on their free exercise rights, without further inquiry into whether the mandate genuinely and meaningfully interferes with their religious practices. Hobby Lobby reasons that it is not the court’s business to assess whether the obligation imposed by the government is substantial in the sense of whether it directly burdens the plaintiffs’ religious beliefs and practices or instead is attenuated, as the government claims it to be. That assessment is equated with a forbidden inquiry into the theological merit of the plaintiffs’ claim. 723 F.3d at 1137. “Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.” Id.
This coercion-only test is one of the Tenth Circuit’s invention. It has the superficial support of language found in multiple court decisions, see, e.g., Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 141, 107 S. Ct. 1046, 1049

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 106 of 158 PageID #: 748

104

Nos. 12-3841 & 13-1077

(1987) (quoting Thomas v. Review Bd. of the Indiana Employ. Sec. Div., 450 U.S. 707, 717–18, 101 S. Ct. 1425, 1431–32 (1981)); Vision Church v. Vill. of Long Grove, 468 F.3d 975, 997 (7th Cir. 2006); Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008), but it misapprehends both the context and relevance of coercion in free exercise jurisprudence, and as a result it writes RFRA’s “substantial burden” provision out of the statute.
The coercion analysis addresses one way in which government may potentially interfere with a plaintiff’s free exercise rights. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010), cited and relied upon by Hobby Lobby for the coercion test, describes three ways in which a plaintiff’s religious rights may be burdened: (1) the government compels the plaintiff to do something that is inconsistent with his religious beliefs; (2) the government forbids the plaintiff from doing something that his religion motivates him to do; or (3) the government does not directly compel the plaintiff to do something forbidden by his religious beliefs or to refrain from doing something commanded by those beliefs, but instead puts substantial pressure on the plaintiff to do so. See also Sherbert v. Verner, supra, 374 U.S. at 402, 83 S. Ct. at 1793) (describing in different terms the multiple ways in which the government might burden religious rights); Mack v. O’Leary, 80 F.3d 1175, 1179 (7th Cir. 1996) (same), cert. granted & judgment vacated on other grounds, 522 U.S. 801, 118 S. Ct. 36 (1997).
The third of the Abdulhaseeb categories is exemplified by Thomas, 450 U.S. 707, 101 S. Ct. 1425. The petitioner in Thomas was denied unemployment benefits because he had left his employment voluntarily: he quit after his employer gave him an assignment (producing military armaments) that he

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 107 of 158 PageID #: 749

Nos. 12-3841 & 13-1077

105

believed he could not perform given his religious beliefs. In denying benefits to Thomas, the state unemployment board was not forcing him to act, or refrain from acting, contrary to his religious faith. Nonetheless, by placing him between a rock and a hard place—either stay on the job, and violate his religious beliefs, or quit, and surrender his right to unemployment compensation—the Supreme Court reasoned that the state was effectively coercing him to act contrary to his religious principles.
Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.
450 U.S. at 717–18, 101 S. Ct. at 1432. See also Hobbie, 480 U.S. at 139–41, 107 S. Ct. at 1048–49 (refusal to award unemployment benefits to plaintiff who refused for religious reasons to work on Sabbath violated free exercise clause); Sherbert, 374 U.S. at 403–04, 83 S. Ct. at 1793–94 (same). Likewise, in Abdulhaseeb, where a prisoner was complaining that the failure to provide him with a halal diet which included meat interfered with his right to the free exercise of religion,6 the prison was not literally

6 The prisoner filed suit under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1(a).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 108 of 158 PageID #: 750

106

Nos. 12-3841 & 13-1077

compelling him to violate his religious beliefs; nonetheless, by putting him to an unacceptable choice—eat a non-compliant diet or go hungry—he was being coerced into violating his religious principles. 600 F.3d at 1316–17; see also Hunafa v. Murphy, 907 F.2d 46, 47–48 (7th Cir. 1990).
To my mind, this is not a substantial pressure case like Thomas; rather, this is a more straightforward instance of the government overtly requiring a plaintiff to do something that he asserts is contrary to his religious beliefs. The ACA unambiguously requires the two corporate plaintiffs to include contraceptive coverage in their employee health plans. Even absent the substantial financial penalties for non-compliance, the two companies presumably would be subject to suit by the government or by an employee for injunctive relief ordering them to comply if they did not otherwise do so, see ante at 7 (citing 29 U.S.C. §§ 1132, 1185d); and, in any event, most individuals and corporations will not feel free to deliberately ignore what the law plainly requires them to do. So the entire inquiry into whether the ACA places substantial pressure on the plaintiffs to take action over their objections is unnecessary and beside the point. There is no dispute that it does.
What the coercion inquiry does not answer, and which the court must turn to next, is whether the government, by requiring the two companies to take action to which the companies and their owners object on religious grounds, is imposing a substantial burden on the plaintiffs’ free exercise of religion. This is where the Tenth Circuit’s decision in Hobby Lobby, now embraced by this court, goes awry. Hobby Lobby postulates that evaluating the nature and degree of the burden imposed by the mandate will require an impermissible inquiry

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 109 of 158 PageID #: 751

Nos. 12-3841 & 13-1077

107

into whether the plaintiffs are correctly interpreting and following religious dogma. 724 F.3d at 1137; see Thomas, 450 U.S. at 715, 101 S. Ct. at 1430 (“We see … that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits he is ‘struggling’ with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.”); United States v. Lee, 455 U.S. 252, 257, 102 S. Ct. 1051, 1055 (1982); Gilardi, 2013 WL 5854246, at *7. Hobby Lobby thus concludes that once the plaintiff has shown the government has put substantial pressure on him to do something to which he sincerely objects on religious grounds, he has shown all that he needs to show to establish that his free exercise right is substantially burdened. 723 F.3d at 1137–38; see ante at 56–57.
This holding effectively rewrites RFRA. The statute does not prohibit the government from putting substantial pressure on a plaintiff to do anything, or to be a party to anything, to which he has an honest religious objection; rather, it states that the government “shall not substantially burden a person's exercise of religion … .” § 2000bb-1(a) (emphasis mine). Congress used the term “substantially” to modify “burden,” and the relevant inquiry considers how that burden affects the individual’s ability to believe, profess, and practice his religion. As Judge Edwards points out in Gilardi, RFRA was specifically drafted in that way to make clear that not every burden imposed by government on religious exercise need be justified by a compelling governmental interest. 2013 WL 5854246, at *27–*28 (Edwards, J., concurring in part & dissenting in part);

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 110 of 158 PageID #: 752

108

Nos. 12-3841 & 13-1077

see also Abdulhaseeb, 600 F.3d at 1316 (“we do not intend to imply that every infringement on a religious exercise will constitute a substantial burden”). By its plain terms, then, the statute calls for a threshold inquiry into the nature of the burden placed on the plaintiff’s free exercise of religion: “substantial” is a term of degree, which invites the court to distinguish large or considerable burdens from minor or incidental ones. Cf. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 196–97, 122 S. Ct. 681, 691 (2002); Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S. Ct. 2139, 2150–51 (1999) (both construing Americans With Disabilities Act’s use of term “substantially” vis-à-vis limitations on major life activities). Otherwise, any honestly-perceived burden on religion resulting from government action would suffice to make out a prima facie free exercise claim under prong (a) of RFRA and trigger the strict scrutiny called for by prong (b). § 2000bb-1(a), (b). See Employ. Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 888–89, 110 S. Ct. 1595, 1605–06 (1990); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003).
No doubt, assessing the substantiality of the claimed burden on one’s free exercise of religion will sometimes call for difficult judgments, as the Supreme Court recognized in Smith, 494 U.S. at 887 n.4, 110 S. Ct. at 1605–06 n.4. Indeed, the difficulty of making such assessments is a key reason why the Court in Smith ultimately abandoned its earlier free exercise clause jurisprudence in favor of a simpler test focusing on the facial neutrality of the challenged law. Id. at 882–89, 110 S. Ct. at 1602–04. But prior to Smith, the Court often engaged in such qualitative assessments in evaluating the merits of free exercise

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 111 of 158 PageID #: 753

Nos. 12-3841 & 13-1077

109

claims. See, e.g., Jimmy Swaggert Ministries v. Bd. of Equalization, 493 U.S. 378, 391, 110 S. Ct. 688, 696 (1990) (“to the extent that imposition of a generally applicable tax merely decreases the amount of money appellant has to spend on its religious activities, any such burden is not constitutionally significant”); Hernandez v. C.I.R., 490 U.S. 680, 699, 109 S. Ct. 2136, 2149 (1989) (“We do … have doubts whether the alleged burden imposed by the [tax] deduction disallowance on the Scientologists’ practices is a substantial one.”); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 447, 108 S. Ct. 1319, 1324 (1988) (“It is undisputed that the Indian respondents’ beliefs are sincere and that the Government’s proposed actions will have severe adverse effects on the practice of their religion. Those respondents contend that the burden on their religious practice is heavy enough to violate the Free Exercise Clause unless the Government can demonstrate a compelling need to complete the G-O road or to engage in timber harvesting in the Chimney Rock area. We disagree.”); Bowen v. Roy, 476 U.S. 693, 707, 106 S. Ct. 2147, 2156 (1986) (“the nature of the burden [on religious liberty] is relevant to the standard that the government must meet to justify the burden”);Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 303, 304–06, 105 S. Ct. 1953, 1962, 1963–64 (1985) (after observing that “[i]t is virtually self-evident that the Free Exercise Clause does not require an exemption from a governmental program unless, at a minimum, inclusion in the program actually burdens the claimant’s freedom to exercise religious rights,” the Court finds that minimum wage, overtime, and recordkeeping requirements imposed by Fair Labor Standards Act on religious foundation and its associates did not significantly burden associates’ free

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 112 of 158 PageID #: 754

110

Nos. 12-3841 & 13-1077

exercise rights); Johnson v. Robison, 415 U.S. 361, 385, 94 S. Ct. 1160, 1174 (1974) (“The withholding of educational benefits involves only an incidental burden upon appellees’ free exercise of religion—if, indeed, any burden exists at all.”); see also Gilardi, 2013 WL 5854246, at *25–26, *27–*28 (Edwards, J., concurring in part & dissenting in part); see generally Andy G. Olree, The Continuing Threshold Test for Free Exercise Claims, 17 WM. & MARY BILL OF RIGHTS J. 103 (2008). By adopting the Court’s pre-Smith jurisprudence and making a “substantial burden” on the free exercise of religion the controlling criterion for the articulation of a prima facie case under RFRA, Congress has expressly called for just this sort of inquiry. Gilardi, 2013 WL 5854246, at *27–*28 (Edwards, J., concurring in part & dissenting in part).
And, in fact, when applying the substantial-burden requirement found in both RFRA and RLUIPA, 42 U.S.C. §§ 2000cc(a)(1), 2000cc-1(a), this circuit and others have always considered the nature and degree of the burden imposed by government action, holding in multiple cases that de minimis or otherwise insignificant burdens on the free exercise of religion do not warrant relief under these statutes. E.g., Eagle Cove Camp & Conf. Ctr., Inc. v. Town of Woodboro, Wisconsin, 2013 WL 5820289, at *5, (7th Cir. Oct. 30, 2013) (“the burden must be truly substantial”); id. at *5–*7; Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 899–901 (7th Cir. 2005); Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999); Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 95–97 (1st Cir. 2013); McFaul v. Valenzuela, 684 F.3d 564, 576–77 (5th Cir. 2012); Abdulhaseeb, 600 F.3d at 1316; Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058,

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 113 of 158 PageID #: 755

Nos. 12-3841 & 13-1077

111

1068–1073 (9th Cir. 2008) (en banc); Smith v. Allen, 502 F.3d 1255, 1277–78 (11th Cir. 2007), abrogated on other grounds by Sossamon v. Texas, 131 S. Ct. 1651 (2011); Norwood v. Strada, 249 F. App’x 269, 272 (3d Cir. 2007); McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d Cir.2004); Weir v. Nix, 114 F.3d 817, 821–22 (8th Cir. 1997); cf. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, supra, 546 U.S. at 426, 126 S. Ct. at 1217 (noting that for purposes of plaintiff’s RFRA claim, government conceded law in question substantially burdened sincere free exercise of religion). These cases are flatly inconsistent with the notion that we cannot assess the nature or degree of any burden imposed on a plaintiff’s free exercise rights by government action.7
Evaluating the nature of the burden imposed is not a test of the orthodoxy, consistency, or theological merit of a plaintiff’s stated religious beliefs. Provided the plaintiff is sincere, ante at 55, we may accept that his objection is one grounded in his religious beliefs. But simply because someone has a good-faith objection, based in religion, to a particular government action does not mean that his right to the free exercise of religion is

7 Some of the RLUIPA cases may be distinguished superficially, in that the plaintiffs were prisoners who sought damages for occasional denials of kosher or halal meals or other accommodations to their religious needs. E.g., Rapier, 172 F.3d at 1006 n.4 (unavailability of non-pork food trays to prisoner at three of 810 meals). This suit, by contrast, involves a challenge to a statutory mandate that the plaintiffs contend is inconsistent with their religious beliefs. Nonetheless the cases remain relevant for the proposition that not all burdens on the free exercise of religion qualify as substantial. The nature of the claim (impingement on the free exercise of religion) is the same; the only difference is the context in which the claim is asserted.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 114 of 158 PageID #: 756

112

Nos. 12-3841 & 13-1077

actually and substantially burdened by that action. Courts routinely undertake examinations of the degree to which a given law, regulation, or other government action does or does not intrude upon an individual’s constitutionally protected interests. See Bowen v. Roy, 476 U.S. at 706–07, 106 S. Ct. at 2155–56 (burdens on religious liberty); see also, e.g., Scott v. Harris, 550 U.S. 372, 383–84, 127 S. Ct. 1769, 1778 (2007) (use of force in seizure of the person); United States v. Knights, 534 U.S. 112, 118–19, 122 S. Ct. 587, 591 (2001) (searches of the home); Planned Parenthood of Se. Pa. v. Casey, supra, 505 U.S. at 874, 112 S. Ct. at 2819 (abortion regulations); Burdick v. Takushi, 504 U.S. 428, 434, 112 S. Ct. 2059, 2063–64 (1992) (regulation of voting rights); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 451–52, 110 S. Ct. 2481, 2486 (1990) (traffic stops); Univ. of Penn. v. E.E.O.C., 493 U.S. 182, 198–201, 110 S. Ct. 577, 586–88 (1990) (compelled disclosure of confidential university faculty peer reviews); Turner v. Safley, 482 U.S. 78, 87–89, 107 S. Ct. 2254, 2261 (1987) (restrictions on prisoner’s First Amendment rights); Weatherford v. Bursey, 429 U.S. 545, 557–58, 97 S. Ct. 837, 844–45 (1977) (violations of attorney-client privilege); Branzburg v. Hayes, 408 U.S. 665, 682–83, 92 S. Ct. 2646, 2657 (1972) (compelled disclosure of reporter’s confidential sources). Without venturing into the content and merit of the plaintiffs’ religious beliefs, we may still consider the nature of the act that the plaintiffs are called upon to perform, the connection between their beliefs and the compelled action, and the extent to which their ability to practice their religion is interfered with by that action.
Thus, for example, in assessing the substantiality of the burden imposed on a plaintiff’s free exercise rights, we may

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 115 of 158 PageID #: 757

Nos. 12-3841 & 13-1077

113

consider whether the burden is direct or indirect. Braunfeld v. Brown, supra, 366 U.S. 599, 81 S. Ct. 1144, makes this clear. Braunfeld sustained Pennsylvania’s Sunday-closing law against a free exercise challenge notwithstanding the economic burden that the law imposed on Jewish merchants: because their religion proscribed them from doing business on Saturdays, requiring them to also close their doors on Sundays imposed an extra cost on them that it did not impose on other businesspeople. The court emphasized that the law imposed “only an indirect burden on the exercise of religion … .” Id. at 606, 81 S. Ct. at 1147.
[I]t cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions. We do not believe that such an effect is an absolute test for determining whether the legislation violated the freedom of religion protected by the First Amendment.
Id. at 606–07, 81 S. Ct. at 1147–48. Hobby Lobby suggests that the Court in Lee subsequently abandoned consideration of whether the burden imposed by a statute on free exercise rights is direct or indirect. 723 F.3d at 1139–40. Yet, the government’s argument in Lee—that an Amish businessman could contribute to the Social Security system without violating his religious belief that it is sinful for a family not to care for its own elderly—was not an argument about the direct or indirect effect of the law, but rather a quarrel with Lee’s understanding of the Amish faith; and the Court’s unwillingness to mediate a theological

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 116 of 158 PageID #: 758

114

Nos. 12-3841 & 13-1077

dispute was what led it to reject the argument. 455 U.S. at 257, 102 S. Ct. at 1055. What is true is that the Court, subsequent to Braunfeld, rejected the directness or indirectness of the burden as a controlling factor in free exercise cases. See Sherbert v. Verner, supra, 374 U.S. at 403–04, 83 S. Ct. at 1794 (“[I]t is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our inquiry.”); see also Thomas, 450 U.S. at 714, 101 S. Ct. at 1432 (“While the compulsion may be indirect, the infringement upon free exercise rights is nonetheless substantial.”). But the Court’s decision in Bowen v. Roy, supra, 476 U.S. at 706–07, 106 S. Ct. at 2156, decided four years after Lee and which I discuss below, makes clear that the Court still regards it as a relevant consideration. Lower court cases likewise confirm that the directness or indirectness of the burden imposed on the exercise of one’s religious exercise right remains a material consideration. Compare, e.g., D.L. ex rel. K.L. v. Baltimore Bd. of Sch. Com’rs, 706 F.3d 256, 263–64 (4th Cir. 2013) (school district’s policy requiring student to be enrolled in public school in order to receive services under section 504 of the Rehabilitation Act, 29 U.S.C. § 794, did not unduly burden parents’ free exercise rights, although they wished to send him to private school and would have to bear full costs of the rehabilitation services for their son if they did so), and Messiah Baptist Church v. Cnty. of Jefferson, Colo., 859 F.2d 820, 825–26 (10th Cir. 1988) (zoning ordinance which prohibited schools, community buildings, and churches from agricultural zone did not impermissibly burden free exercise rights of church and its members even if it made their exercise of religion more expensive, where, inter alia, any burden imposed by neutral

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 117 of 158 PageID #: 759

Nos. 12-3841 & 13-1077

115

law was an indirect burden), with Paul v. Watchtower Bible & Tract Soc’y of N.Y., Inc., 819 F.2d 875, 880–81 (9th Cir. 1997) (subjecting Jehovah’s Witness church to tort damages for religious practice of “shunning” would violate free exercise clause, as imposition of damages could constitute a direct burden on religion).
Free exercise cases have also drawn a distinction between what a challenged law or practice requires the plaintiff himself to do, and what it permits another party—specifically, the government—to do to which plaintiff objects on religious grounds. For example, in Bowen v. Roy, a Native American man with a young daughter objected to a statutory requirement that he provide a Social Security number for each member of his household in order to obtain benefits from the Aid to Families with Dependent Children program (“AFDC”) and to a companion requirement that state AFDC plans use such numbers in administering their plans. With respect to the latter requirement, he believed that if state agencies used an identifying number for his daughter, they would “rob” her spirit and “prevent her from attaining greater spiritual power,” 476 U.S. at 696, 106 S. Ct. at 2150; he therefore contended that the requirement that state agencies use their daughter’s Social Security number violated his right to the free exercise of his religion. The Supreme Court disagreed. It noted that the plaintiff was not complaining of an intrusion on his freedom of religious belief, which was absolute, or of an intrusion upon the liberty of his own conduct, which was less than absolute; instead, the plaintiff was invoking the free exercise clause in an effort to dictate how the government should transact its

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 118 of 158 PageID #: 760

116

Nos. 12-3841 & 13-1077

business. Id. at 699, 106 S. Ct. at 2152. The Court rejected the notion that the reach of free exercise clause extended this far:
Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that appellees engage in any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. “[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government.” Sherbert v. Verner, 374 U.S. 398, 412, 83 S. Ct. 1790, 1798 (1963) (Douglas, J., concurring).
As a result, Roy may no more prevail on his religious objection to the Government’s use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government’s filing cabinets. The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual right to dictate the conduct of the government’s internal procedures.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 119 of 158 PageID #: 761

Nos. 12-3841 & 13-1077

117

Id. at 699–700, 106 S. Ct. at 2152. (emphasis in original). See also Lyng v. Nw. Indian Cemetery Protective Ass’n, supra, 485 U.S. at 451–53, 108 S. Ct. at 1326–28 (government’s decision to allow timber harvesting and road construction in area of national forest used for religious purposes by Native American tribes did not interfere with free exercise rights of tribes, notwithstanding potentially devastating impact government’s decision might have on tribes’ religious activities: “Whatever rights the Indians may have to the use of the area, … those rights do not divest the Government of its right to use what is, after all, its land.”) (emphasis in original).
Building upon the Supreme Court’s holding in Roy, the D.C. Circuit in Kaemmerling v. Lappin, supra, 553 F.3d 669, sustained the dismissal of a prisoner’s claim under RFRA that the statutorily mandated collection and use of his DNA for purposes of a national law enforcement database substantially burdened his free exercise rights. Kaemmerling alleged that as an Evangelical Christian, he viewed DNA as the building block of God’s creative work, and he believed that the collection, storage, and use of one’s DNA was tantamount to laying the foundation for the rise of an anti-Christ. In rejecting the viability of Kaemmerling’s claim, the court emphasized that the government was not forcing him to modify his own behavior:
… Kaemmerling does not allege facts sufficient to state a substantial burden on his religious exercise because he cannot identify any “exercise” which is the subject of the burden to which he objects. The extraction and storage of DNA information are entirely activities of the FBI, in which Kaemmerling

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 120 of 158 PageID #: 762

118

Nos. 12-3841 & 13-1077

plays no role and which occur after the [Bureau of Prisons] has taken his fluid or tissue sample (to which he does not object). The government’s extraction, analysis, and storage of Kaemmerling’s DNA information does not call for Kaemmerling to modify his religious behavior in any way—it involves no action or forbearance on his part, nor does it otherwise interfere with any religious act in which he engages. Although the government’s activities with his fluid or tissue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be said to hamper his religious exercise because they do not “pressure [him] to modify his behavior and to violate his beliefs.” Thomas, 450 U.S. at 718, 101 S. Ct. 1425.
Kaemmerling alleges no religious observance that the DNA Act impedes, or acts in violation of his religious beliefs that it pressures him to perform. Religious exercise necessarily involves an action or practice, as in Sherbert, where the denial of unemployment benefits “impede[d] the observance” of the plaintiff’s religion by pressuring her to work on Saturday in violation of the tenets of her religion, 374 U.S. at 404, 83 S. Ct. 1790, or in Yoder, where the compulsory education law compelled the Amish to “perform acts undeniably at odds with fundamental tenets of their religious beliefs,” 406 U.S. at 218, 92 S. Ct. 1526. Kaemmerling, in contrast, alleges that the DNA Act’s requirement that the federal government collect and store his DNA information requires the

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 121 of 158 PageID #: 763

Nos. 12-3841 & 13-1077

119

government to act in ways that violate his religious beliefs, but he suggests no way in which these governmental acts pressure him to modify his own behavior in any way that would violate his beliefs. See Appellant’s Br. at 21 (describing alleged substantial burden as “knowing [his] strongly held beliefs had been violated by a[n] unholy act of an oppressive regime”).
553 F.3d at 679. (The court went on to hold, alternatively, that even if the DNA mandate did impose a substantial burden on Kaemmerling’s free exercise rights, it would nonetheless survive RFRA’s step-two strict scrutiny analysis. Id. at 680–85.)
These lines of cases thus supply two criteria that can help us to determine whether the burden imposed by government action upon a plaintiff’s free exercise rights is substantial. First, the Braunfeld line of cases instructs us to look at the burden resulting from government action and consider the way in which it purportedly interferes with an individual’s exercise of religion: is the burden direct, such that it actually prevents a person from behaving in accordance with his religion, or does it impose only an indirect, incidental burden that, for example, makes the observance of his religion more costly but does not actually preclude his religious exercise? Second, the Roy line of cases draws a distinction between what the law requires a plaintiff himself to do, and what it permits or requires a third party to do. These cases recognize that although the plaintiff may have a religiously-based objection to what the government or another third party does with something that the law requires the plaintiff to provide (in Roy, a Social Security number, in Kaemmerling, his DNA), the free exercise clause

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 122 of 158 PageID #: 764

120

Nos. 12-3841 & 13-1077

does not necessarily permit him to impose a restraint upon another’s action.
Admittedly, neither line speaks directly to the issues before us now: the Supreme Court has never before considered whether and under what circumstances the statutorily-mandated provision of a particular benefit to an employee will substantially burden the employer’s free exercise rights. (The precedent that is closest to that scenario is United States v. Lee, in which the Court held that the objecting Amish employer was obliged to pay Social Security taxes notwithstanding his religious objection to doing so, given the government’s compelling interest in a uniform national system of retirement pay.) The cases I have just discussed are nonetheless relevant in two senses. First, like the various circuit cases finding certain burdens on free exercise rights to be insubstantial, supra at 110111, they confirm that we can and in fact must examine the nature and degree of the burden resulting from government action to decide whether it constitutes a substantial burden for purpose of RFRA. Second, they demonstrate that in making that assessment, we must consider precisely how the objectedto action relates to the individual’s exercise of his religious rights.
Taking my cue from these cases, I move on to consider precisely how the ACA’s requirement that a corporate employer provide health insurance to its employees that includes contraceptive coverage does or does not burden the free exercise rights of its owners. Because the ACA does not actually require the individual plaintiffs themselves to do anything contrary to their religious beliefs, and because their desire not to have their companies facilitate the use of contra-

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 123 of 158 PageID #: 765

Nos. 12-3841 & 13-1077

121

ception necessarily implicates the private choices of employees as to how they will use the insurance coverage they have earned as a benefit of their work, I am convinced that any burden imposed on the free exercise rights of the individual plaintiffs is too attenuated to qualify as a substantial burden.
5.
A substantial burden is one that bears direct, primary, and fundamental responsibility for making the plaintiff’s religious exercise impracticable. Ante at 54–55; Nelson v. Miller, 570 F.3d 868, 878 (7th Cir. 2009); Koger v. Bryan, 523 F.3d 789, 799 (7th Cir. 2008); Civil Liberties for Urban Believers v. City of Chicago, supra, 342 F.3d at 761. Here, the contention is not that the ACA proscribes any belief or interferes with any form of worship activity, but that the statute nonetheless requires the plaintiffs to lend material support to an activity (the use of contraception) that is inconsistent with the individual plaintiffs’ Catholic faith. Specifically, the company health plans must provide insurance coverage which, by fully underwriting the cost of contraceptive care, facilitates what the Kortes and the Grotes view as a moral wrong (the use of contraception).
For two key reasons, the mandate poses no direct burden on the Kortes’ and Grotes’ exercise of religion. First, the mandate does not require them to alter their own practices in any way. As the court’s articulation of the asserted burden makes clear, what they are objecting to is the use of contraception by third parties, which the plaintiffs do not wish to facilitate. Second, to the extent the Kortes’ and the Grotes’ concern has to do with facilitating what they believe to be immoral conduct by third parties, it is the corporate health

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 124 of 158 PageID #: 766

122

Nos. 12-3841 & 13-1077

plans, not they, who fund the insurance which employees may use to procure contraception.
The first point is obvious, and I have made it before, but it cannot be repeated often enough. Nothing in the ACA requires the Kortes or the Grotes themselves to do anything that violates the Catholic Church’s disapproval of contraception. They need not purchase, use, or dispense contraceptives; they need not promote or endorse the use of contraceptives; nor need they remain silent as to what their faith teaches them about the immorality of contraceptive use. See Gilardi, 2013 WL 5854246, at *29–*31 (Edwards, J., concurring in part & dissenting in part); Goehring v. Brophy, 94 F.3d 1294, 1300 (9th Cir. 1996) (use of university registration fee to fund student health insurance plan that included abortion coverage did not substantially burden free exercise rights of students who objected to abortion on religious grounds because, in part, “plaintiffs are not required to accept, participate in, or advocate in any manner for the provision of abortion services”), overruled on other grounds by City of Boerne v. Flores, supra, 521 U.S. 507, 117 S. Ct. 2157; cf. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1121 (9th Cir. 2009) (objection by pharmacy to dispensing emergency contraception); Menges v. Blagojevich, 451 F. Supp. 2d 992, 1000–02 (C.D. Ill. 2006) (same). Their only connection to the objected-to use of contraception is indirect: (a) the Grotes and the Kortes are both the owners of closely-held corporations; (b) which are now required by the ACA to provide standardized health-care coverage to employees; (c) which employees may elect, inter alia, to use to obtain contraception. Each step in this chain separates them by an additional degree from the objected-to practice of contraception.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 125 of 158 PageID #: 767

Nos. 12-3841 & 13-1077

123

It is the corporations, not the individual plaintiffs, which as the employers are obligated to provide the requisite coverage to employees of the firms. The Kortes and the Grotes incorporated their businesses for a reason. Business owners form corporations precisely to insulate themselves from the obligations of the corporation and to create a separate entity to carry on the business. The corporations and only the corporations bear the obligation to provide the insurance coverage to employees; the Kortes and the Grotes bear no personal obligation to pay for the coverage. Thus the money—the “material support,” as the court describes it—comes from Korte & Luitjohan Contractors and Grote Industries, not from the pockets of the individual plaintiffs.8
Moreover, what the companies are providing is a form of employee compensation, like wages. Handing over a paycheck to an employee may materially facilitate the purchase of any number of (perfectly legal) goods and services—alcohol, lottery tickets, cigarettes, adult pornography, contraception,

8 The sparse record before us does not reveal whether and to what degree the contraceptive mandate may increase the cost of health insurance to employers. Full coverage of contraception may (like the mandated coverage of other preventive services) save insurers and employers money in the long run by reducing the multiple costs associated with unplanned pregnancies. See infra at 144-145; Institute of Medicine, Committee on Preventive Services for Women, Clinical Preventive Services for Women: Closing the Gaps, 107 (2011) (costs of unintended pregnancies in United States in 2002 estimated to be $5 billion, while costs saved due to contraception estimated to be $19.3 billion), available at http://www.nap.edu/ catalog.php?record_id=13181. In any case, the plaintiffs’ argument here turns not on the additional cost of providing contraceptive coverage but to facilitating the use of contraceptives by providing that coverage, period.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 126 of 158 PageID #: 768

124

Nos. 12-3841 & 13-1077

abortion, and Harry Potter books, to name a few—that are contrary to an employer’s religious beliefs. Of course, an employer typically does not know how an employee will spend his wages. (Neither does he typically know what healthcare decisions his employee is making.) But what if he does know? Suppose an employee announces, “As soon as I get my paycheck, I am going to have an abortion.” Or suppose it is well known at the workplace that a particular employee drinks himself blind at a local tavern every Friday night after he gets paid. Can the employer withhold the paycheck on the grounds that turning it over will materially assist an act that he finds morally intolerable? Without explaining why, the plaintiffs concede that an employer cannot do this. They do not contend that the possibility, or even the foreknowledge, that an employee can and will use her wages to engage in an activity proscribed by the plaintiffs’ religious beliefs substantially burdens their free exercise rights, notwithstanding that the payment of wages to the employees will facilitate the objectedto activity.9 How is the provision of health insurance different? One difference is that the employer plays some role in establishing and administering the health care plan, as opposed to supplying the employee with a voucher that the employee can use to purchase his own insurance elsewhere. But the insur-

9 As Judge Edwards put it in Gilardi, “the Gilardis are no more of an ‘essential cause’ of increasing the use of contraception when they authorize Freshway [their company] to pay for a benefits plan that employees might use to get contraception than when they authorize wages that an employee might use to purchase contraception she would not otherwise be able to afford.” 2013 WL 5854246, at *29 (Edwards, J., concurring in part and dissenting in part) (emphasis in original).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 127 of 158 PageID #: 769

Nos. 12-3841 & 13-1077

125

ance is nonetheless a component of compensation that the employee has earned—an employee accepts less in salary or hourly pay in exchange for benefits like health insurance, and, in most cases, contributions have been withheld from the employee’s paycheck to further defray the costs of that insurance. See Sepper, Contraception and the Birth of Corporate Conscience, supra, at 22.10 The fact that the employer in administering the plan is treated as a fiduciary, with a corresponding obligation to act in the employee’s interest is consistent with the notion that the insurance, while provided by the employer, belongs to the employee. See 29 U.S.C. §§ 1002(21)(A)(I) (defining ERISA fiduciaries to include person with authority or control over plan assets); 1104(a)(1)(A) (ERISA fiduciaries must discharge duties to plan solely in interests of plan participants and beneficiaries, for exclusive purpose of providing benefits thereto).11

10 The record does not disclose what the plaintiffs’ employees contribute toward the cost of their health insurance. The average employee currently contributes $999 toward the $5,884 cost of an employer-sponsored, singlecoverage plan (roughly a 17-percent share), and $4,565 toward the $16,351 cost of an employer-sponsored, family-coverage plan (roughly a 28-percent share). See Henry J. Kaiser Family Foundation, 2013 Employer Health Benefits Survey, Summary of Findings & Ex. B (Aug. 20, 2013), available at http:// kff.org/report-section/2013-summary-of-findings/ (last visited Nov. 7, 2013).
11 See generally Howell v. Motorola, Inc., 633 F.3d 552, 562 (7th Cir. 2011) (discussing when employer and plan sponsor act as fiduciaries); see also, e.g., Orth v. Wis. State Emp. Union Counsel 24, 546 F.3d 868, 871, 874 (7th Cir. 2008) (employer breached fiduciary duty to retiree by deducting 100 percent of cost of his insurance benefits from retirement pay rather than 10 percent as specified by contract); Phelps v. C.T. Enters., Inc., 394 F.3d 213, 221–22 (4th
(continued...)

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 128 of 158 PageID #: 770

126

Nos. 12-3841 & 13-1077

Although the plaintiffs cast their objection as one to the provision of contraceptive coverage in and of itself, what they are really objecting to is the private choices that employees and their families might make in reliance on health care coverage that includes contraceptive care. That the coverage is provided does not mean that it will necessarily be used, or used in a way that the plaintiffs find objectionable. This much is made clear by the Korte firm’s ethics policy, which itself recognizes that the use of some contraceptive medications, for non-contraceptive purposes, is consistent with the Kortes’ Catholic faith. Ante at 12–13 & n.5. The court too recognizes this when it describes the plaintiffs’ objection as one to providing material assistance to immoral conduct—i.e., the use of contraceptives. Ante at 13, 60. And this is the point—that the objection turns not on the coverage in isolation but the decision to use covered contraceptives for a particular purpose, i.e. to prevent procreation. See Sepper, Contraception and the Birth of Corporate Conscience, at 18, 19 (noting that burden is non-existent if employees share company’s asserted religious values and therefore do not use contraceptive coverage). That decision is merely one of many that plaintiffs might find objectionable. For what the ACA requires the plaintiffs to provide to their employees is not a contraceptive insurance policy but a health care plan that covers literally thousands of services. The potential ways in

11 (...continued) Cir. 2005) (evidence that employer diverted employee contributions to health benefits plan to other corporate uses supported claim for breach of fiduciary duty); LoPresti v. Terwilliger, 126 F.3d 34, 40 (2d Cir. 1997) (company owner’s diversion of pension contributions deducted from employee pay to other uses constituted breach of fiduciary duty).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 129 of 158 PageID #: 771

Nos. 12-3841 & 13-1077

127

which employees might choose to use those services surely number many times more, and any number of those choices might be objectionable to one religion or another. See Grote, 708 F.3d at 866 (dissent).
This is the sense in which Zelman v. Simmons-Harris, 536 U.S. 639, 652–654, 122 S. Ct. 2460, 2467–68 (2002), and Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 233–35 120 S. Ct. 1346, 1356–57 (2000), are relevant: both emphasize the critical role that the independent decisions of third parties play in walling off an unwilling financier from activities or speech that he objects to subsidizing on constitutional grounds. In Zelman, the objectors were taxpayers who contended that the state’s issuance of vouchers that parents could (and in overwhelming numbers did) use to send their children to parochial schools violated the First Amendment’s establishment clause, in that public funds were being used for religious purposes. In Southworth, the objectors were public university students who argued that the use of their mandatory activity fees to support student groups whose missions and speech they opposed violated their own First Amendment right to free speech. The Supreme Court rejected the First Amendment claims in both cases. In Zelman, the Court emphasized that because the voucher program was neutral with respect to religion, and public money reached religious schools solely by way of “genuine and independent private choice,” the protesting taxpayers did not have a valid Establishment Clause claim. 536 U.S. at 652, 122 S. Ct. at 2467. And in Southworth, the Court likewise stressed that because student activity funds were allocated on a viewpoint-neutral basis, ensuring that both minority and majority views would be heard, there was no

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 130 of 158 PageID #: 772

128

Nos. 12-3841 & 13-1077

genuine risk that any student group would be perceived as speaking for the university and its students, and thus no meritorious claim that the objecting students were being compelled to “speak” in violation of their own beliefs and views. 529 U.S. at 233–35, 120 S. Ct. at 1356–57.
Yes, Zelman and Southworth can be distinguished from this case: Zelman involved an establishment clause claim, and Southworth involved a free speech claim, whereas this case presents a free exercise clause claim. But at the bottom of all three cases is the claim that forcing the plaintiff to give his financial aid to activity or speech that he finds objectionable cannot be reconciled with his First Amendment freedoms. Central to the rejection of this claim in Zelman and Southworth was official agnosticism, which permitted the funds to be used as third parties (in Zelman, the parents, and in Southworth, the student council) chose, with no reasonable perception that those choices were attributable to either the government or the objecting plaintiff. The same reasoning explains why mandatory, employer-sponsored insurance coverage which includes contraception as a covered service does not meaningfully burden the plaintiffs’ free exercise rights. By including contraception in the required coverage, the government is in no way requiring any company owner to use, endorse, or dispense contraception in violation of his own religious beliefs; the choice whether and under what circumstances to use that coverage is left to the individual employee and her physician, to be made in private, with no participation by the employer. Although funds from the company health plan are being used to facilitate that choice, no objective observer would attribute that choice to the company, let alone its owner. See Gilardi, 2013

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 131 of 158 PageID #: 773

Nos. 12-3841 & 13-1077

129

WL 5854246, at *30 (Edwards, J., concurring in part & dissenting in part).
Finally, it is worth considering the ramifications of deeming one choice that may be made by an employee using her workplace healthcare plan to be a burden on her employer’s free exercise rights. Again, what the ACA compels a covered employer to provide is not a contraceptive care plan but a comprehensive health care plan that includes thousands of medical services, including contraceptive care. It may seem both possible and reasonable to carve out the coverage of contraceptives from the rest of the ACA-mandated insurance plan, in that the plaintiffs have a categorical objection to the use of contraceptives (insofar as they are used to prevent contraception) and the contraception mandate itself stands out in that it requires coverage of contraceptives without copayment by the employee.12 (I suspect that as a matter of public discourse, if not judicial treatment, the fact that contraceptive care implicates both sex and women, also has something to do with the reason why the contraception mandate seems different from other provisions of the ACA.) However, as I have pointed out previously, a given employer might find any

12 It is misleading, however, to say, as many reports do, that the mandate requires the coverage of contraceptives at no cost to the employee, given that most employees pay some portion of the cost of their workplace health insurance. See supra n.10. Many other preventive and screening healthcare services are likewise to be provided to the employee without a copayment under the ACA. See http://www.healthcare.gov/what-are-my-preventivecare-benefits (listing 15 categories of preventive care to be covered with no copayments for all insureds, 22 categories of such care for women, and 25 categories for children) (last visited Nov. 7, 2013).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 132 of 158 PageID #: 774

130

Nos. 12-3841 & 13-1077

number of those services, either categorically or situationally, inconsistent with his or her religious beliefs. If, as the court today holds, it is a substantial burden on an employer’s free exercise rights to compel him to insure a form of medical care to which he objects on religious grounds, then all manner of insured medical services are subject to challenge under RFRA. See Gilardi, 2013 WL 5854246, at *32 (Edwards, J., concurring in part & dissenting in part).
Nor, logically, would the potential objections that employers could raise be limited to health insurance. Federal law grants any number of rights to employees, the recognition and accommodation of which an employer might find to be inconsistent with his religious beliefs. My hypothetical about extending FMLA leave to a gay parent is but one example. Likewise, beyond the employer-employee relationship, there may be any number of federal rights bestowed on third parties—customers, vendors, creditors, debtors—to which the owner of a business theoretically might pose a religious objection. Today’s decision certainly opens the door to challenging the enforcement of those rights against a business as a burden on the free exercise rights of its owner.13

13 The variety of government requirements that individuals, businesses, and religious organizations have challenged on free exercise grounds makes this clear. See, e.g., Tony & Susan Alamo Found. v. Sec’y of Labor, supra, 471 U.S. at 303–06, 105 S. Ct. at 1962–64 (minimum wage, overtime, and recordkeeping requirements of Fair Labor Standards Act); Bob Jones Univ. v. United States, 461 U.S. 574, 603–04, 103 S. Ct. 2017, 2034–35 (1983) (criteria for tax-exempt status); United States v. Lee, supra, 455 U.S. at 256–60, 102 S. Ct. at 1055–57 (Social Security taxes); In re Young, supra, 82 F.3d at 1418–20 (recovery of
(continued...)

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 133 of 158 PageID #: 775

Nos. 12-3841 & 13-1077

131

What also should not be overlooked is that by exempting a corporation from a statute that grants a particular right to the corporation’s employee or to another third party on the ground that the mandate impinges on the religious rights of the corporate owners, the court is depriving the third party of a right that Congress meant to give him. The Supreme Court has hinted at a reluctance to recognize a plaintiff’s request for a religious exemption from a legal requirement when granting the exemption would burden the rights of others. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8, 109 S. Ct. 890, 901 n.8 (1989) (plurality) (noting significance, in free exercise and establishment clause jurisprudence, of extent to which proposed exemptions for religious groups would burden the rights of third parties); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 630, 63 S. Ct. 1178, 1181 (1943) (noting that free exercise challenge to requirement that public school students salute American flag “does not bring [plaintiffs] into collision with rights asserted by any other individual.”); Braunfeld, 366 U.S. at 604, 81 S. Ct. at 1146 (noting Barnette’s observation as a limit on free exercise rights); see also South Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1211 (6th Cir. 1990) (“We respect the Church’s objections to the workers’ compensation system and its remarkable devotion to

13 (...continued) debtor’s avoidable transfers in bankruptcy proceeding); South Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1206–09 (6th Cir. 1990) (workers compensation premiums); Elane Photography, LLC v. Willock, 309 P.3d 53, 72–75 (N.M. 2013) (state human rights ordinance), pet’n for cert. filed (U.S. Nov. 8, 2013); Koolau Baptist Church v. Dep’t of Labor & Indus. Relations, 718 P.2d 267, 271–73 (Hi. 1986) (unemployment insurance taxes).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 134 of 158 PageID #: 776

132

Nos. 12-3841 & 13-1077

its religious beliefs in every aspect of life. Where such beliefs clash with important state interests in the welfare of others, however, accommodation is not constitutionally mandated.”); Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 93 (Cal. 2004) (“Strongly enhancing the state’s interest is the circumstance that any exemption from the [state statute requiring employers to include contraceptive coverage in workplace health insurance plans] sacrifices the affected women’s interest in receiving equitable treatment with respect to health benefits. We are unaware of any decision in which this court or the United States Supreme Court has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.”); Perry Dane, Note, Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities, 90 YALE L. J. 350, 368 (1980) (injury to third parties may counsel against religious exemption). Whatever work-around might be possible to bestow that right through alternate means, there is no certainty that the government can or will implement the work-around or that it will do so on any given timeline, and in the meantime the corporate owner has vindicated its asserted rights at the expense of others. The statutory mandate at issue in this case implicates not only a constitutionally protected freedom to use contraception, but a range of other interests related to the health of women and their children and the ability of women to enter and remain in the workplace. It is not just the women who work for Korte & Luitjohan Contractors and Grote Industries who have those interests; the wives and daughters of employees who have family health insurance

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 135 of 158 PageID #: 777

Nos. 12-3841 & 13-1077

133

coverage through those firms are also implicated. Whether the employees and family members who are affected by this court’s ruling will be able to access contraception in the absence of a government work-around cannot be known; what is virtually certain is that they will have to pay 100 percent of the cost of contraception absent access to alternative coverage through a spouse’s insurance plan, for example. To the extent that some employees will be unable to pay the out-of-pocket costs of contraception, the plaintiffs, based on their own religious beliefs, will have effectively narrowed the scope of healthcare that is available to those employees. This is the very scenario about which the Supreme Court has signaled concern; and given that the plaintiffs’ own free exercise rights are at most modestly burdened by the contraceptive mandate, we tread on dangerous territory by exempting the plaintiffs from the statutory mandate.
I mentioned at the outset that the court’s decision struck me as reminiscent of the Lochner era; let me explain why I think this is so. Lochner and its progeny struck down a host of wage, hour, and other workplace regulations on the theory that they impermissibility intruded on the rights of contract, property, and to engage in a lawful, private business as protected by the due process clauses of the Fifth and Fourteenth Amendments. See, e.g., Lochner v. New York, 198 U.S. 45, 57, 25 S. Ct. 539, 543 (1905) (state statute specifying that bakery employees could work no more than 10 hours per day or 60 hours per week impermissibly intruded on employer’s and employee’s freedom of contract: “There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 136 of 158 PageID #: 778

134

Nos. 12-3841 & 13-1077

of a baker.”); Coppage v. Kansas, 236 U.S. 1, 11–14, 35 S. Ct. 240, 242–43 (1915) (state statute proscribing “yellow dog” contracts that forbade employees from joining a union interfered with rights of contract and private property); Adkins v. Children’s Hosp. of D.C., 261 U.S. 525, 557–59, 43 S. Ct. 394, 401–02 (1923) (federal statute establishing minimum wage standards for women and children working in District of Columbia interfered with freedom of contract by artificially restricting employer’s side of wage negotiation); New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S. Ct. 371, 374 (1932) (state statute requiring a license to engage in manufacture, distribution, or sale of ice interfered with common right to engage in lawful private business).
One flaw of the Lochner jurisprudence is that while the Court purported to protect the constitutional rights of workers as well as employers, it blinded itself to the reality that employees frequently did not possess bargaining power enabling them to pursue and protect their own liberty interests, so that by invalidating regulations meant to protect workers, the Court was in fact depriving them of their contractual and other rights; substantive due process was being wielded as a club to defeat important workplace protections. When the Court signaled an end to the Lochner era with its decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578 (1937), to uphold a state statute establishing a minimum wage for women and minors—and thus to overrule its decision in Adkins—it stressed that the concept of liberty enshrined in the due process clause also includes the right of government to enact legislation aimed at promoting the health and welfare of the public, including protection for the rights of employees:

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 137 of 158 PageID #: 779

Nos. 12-3841 & 13-1077

135

The principle which must control our decision is not in doubt. The constitutional provision invoked is the due process clause of the Fourteen Amendment governing the states, as the due process clause invoked in the Adkins Case governed Congress. In each case the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has a history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interest of the community is due process.
Id. at 391, 57 S.Ct. at 581–82. In concluding that the minimumwage law fell within this broad police power, and did not impermissibly intrude upon the rights of employers, the Court quoted approvingly from Justice Holmes’ dissent in Adkins:
This statute does not compel anybody to pay anything. It simply forbids employment at rates below those fixed as the minimum requirement of health and right living. It is safe to assume that women will

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 138 of 158 PageID #: 780

136

Nos. 12-3841 & 13-1077

not be employed at even the lowest wages allowed unless they earn them, or unless the employer’s business can sustain the burden. In short the law in its character and operation is like hundreds of socalled police laws that have been up-held.
Id. at 396–97, 57 S. Ct. at 584 (quoting Adkins, 261 U.S. at 570, 43 S. Ct. at 406 (Holmes, J., dissenting).
What the plaintiffs’ claim has in common with the Lochner jurisprudence is that it elevates the daily affairs of a secular, for-profit corporation to constitutional status, treating the business as the embodiment of its owners’ religious principles, such that a burden on the corporation is conceived of as a burden on the religious rights of the corporate owners. In this way, a statutory mandate that is amply justified by the government’s police power, which falls solely on the corporation, and which requires the owners to do absolutely nothing in their personal lives that is inconsistent with their religious beliefs, is nonetheless deemed to be an impermissible intrusion upon the exercise of their constitutionally protected religious beliefs. The burden, so conceived, is then used as the springboard for overruling a neutral, generally-applicable statutory provision that Congress has deemed necessary to protect the rights of others.
When the Kortes and the Grotes chose to enter the business world, they did not surrender their free exercise rights, but they did assume responsibility for the regulatory obligations imposed on all like businesses, including statutory obligations to their employees. See Lee, 455 U.S. at 261, 102 S. Ct. at 1057; Gilardi, 2013 WL 5854246, at *34 (Edwards, J., concurring in

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 139 of 158 PageID #: 781

Nos. 12-3841 & 13-1077

137

part & dissenting in part); cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 259–61, 85 S. Ct. 348, 358–60 (1964) (rejecting contention that federal prohibition of racial discrimination in public accommodations violated motel’s right to choose its customers and operate business as it wished, given well established powers of both Congress and the States to regulate inter- and intra-state commerce). They chose to form corporations that legally separated them from the assets and obligations of their businesses. See Cedric Kushner Promotions, Ltd., supra, 533 U.S. at 163, 121 S. Ct. at 2091. Like any secular employer in a religiously pluralistic nation, the Kortes and the Grotes must realize that their companies employ individuals who do not share their own religious beliefs and who may choose to use their wages and benefits in ways that are offensive to those beliefs. As a matter of both common sense and legal reasoning, no one would plausibly treat those choices as the Kortes’ and Grotes’ own decisions, or as a meaningful burden on the exercise of their religious rights. What the ACA imposes on employers is an obligation to provide employee health insurance that covers a standard, comprehensive set of benefits. How an individual employee uses those benefits is up to her; she not only earns the insurance through her labor but typically contributes a significant portion of her wages to pay for it. Her choices will be guided by, among other things, her own religious principles. Although an employer, in conveying the benefits she has earned, no doubt facilitates those choices, her freedom to make choices that are inconsistent with the employer’s own religious beliefs imposes nothing like a

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 140 of 158 PageID #: 782

138

Nos. 12-3841 & 13-1077

substantial burden on the employer’s practice of religion.14 Only by extending the scope of an employer’s exercise of religion far beyond his own belief, worship, and conduct to the conduct of his employees, can we conceive of the insurance benefits provided to employees as an undue burden on the free exercise rights of the company owners. This is, in my view, far beyond what Congress had in mind when it enacted RFRA.
6.
If it were necessary to reach the second prong of the RFRA inquiry, I would find that the contraception mandate is supported by a compelling governmental interest. The court chides the government for not making more of a case in this respect. But, to my mind, the nature and the weight of the interests supporting the mandate are obvious. In this regard, I view this case as materially no different from Lee, in which the court found the government’s interest in a national social security system sufficiently compelling to warrant infringement on an Amish employer’s religious interests by requiring him to pay into the system.

14 As Judge Edwards has pointed out:
No Free Exercise decision issued by the Supreme Court has recognized a substantial burden on a plaintiff’s religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is merely required to take action that might enable other people to do things that are at odds with the plaintiff’s religious beliefs.
2013 WL 5854246, at *29 (emphasis in original).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 141 of 158 PageID #: 783

Nos. 12-3841 & 13-1077

139

The government has an obvious and compelling interest in broadening Americans’ access to health insurance. That all Americans have a keen interest in access to medical goods and services is beyond question. As the costs of both health care and health insurance have risen substantially in recent decades and the number of workplace insurance plans has declined, the need for health insurance reform has become more urgent. In 2010, the year that the ACA was enacted, some 50 million Americans lacked health insurance—roughly 18 percent of the non-elderly population. See Dep’t of Health & Human Servs., Office of the Ass’t Sec’y for Planning & Evaluation, ASPE Issue Brief - Overview of the Uninsured in the United States: A Summary of the 2011 Current Population Survey, available at http://aspe. hhs.gov/health/reports/2011/cpshealthins2011/ib.shtml (last visited Nov. 7, 2013). Obtaining insurance in the individual market was expensive: In 2010, average monthly per-person premiums in the individual market for health insurance ranged from a low of $136 in Alabama to $437 in Massachusetts, for a nationwide average of $215 (more than $2,500 per year). Henry J. Kaiser Family Foundation, State Health Facts, Average Monthly Per Person Premiums in the Individual Market, available at http://http://kff.org/other/state-indicator/ individual-premiums/ (last visited Nov. 7, 2013). Needless to say, many individuals and families—those who could afford the premiums—spent far more. At the same time, medical debtors—whether uninsured or underinsured—were becoming a much larger share of those filing for bankruptcy. See David U. Himmelstein, et al., Medical Bankruptcy in the United States, 2007: Results of a National Study, 122 AM. J. MED. (No. 8) 741 (Aug. 2009). Uncompensated hospital care (including both

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 142 of 158 PageID #: 784

140

Nos. 12-3841 & 13-1077

charity care and services for which hospitals expected compensation but did not get it) had increased tenfold over the prior three decades, from $3.9 billion in 1980, to $39.3 billion in 2010. American Hospital Association, Uncompensated Hospital Care Cost Fact Sheet at 3 (January 2013), available at h t t p : / / w w w. a h a . o r g / c o n t e n t / 1 3 / 1 - 2 0 1 3 uncompensated-care-fs.pdf (last visited Nov. 7, 2013).
The ACA’s employer mandate, coupled with an individual mandate applicable to all persons not covered by employersponsored health plans and otherwise not eligible for Medicare or Medicaid, was a logical, although certainly not the only, means of moving the country toward universal health insurance. It builds upon the American tradition of employersponsored health insurance that began in the early 20th century. See, e.g., David Blumenthal, Employer-Sponsored Health Ins. in the U.S.—Origins and Implications, 355 NEW ENGLAND J. MED. No. 1, 82 (July 6, 2006). It takes advantage of risk-spreading, economies of scale, quality control, and other features of employer-procured insurance. And, although this was the work of a Democratic President and Congress, it had the advantage of having been first proposed by a Republican President—Nixon—nearly 40 years ago. See Special Message from President Richard M. Nixon to the Congress Proposing a Comprehensive Health Insurance Plan (Feb. 6, 1974), available at http://www.presidency.ucsb.edu/ws/index.php?pid=4337 (last visited Nov. 7, 2013). My intention here is neither to validate nor endorse the ACA as policy—that is not within my purview—but merely to recognize that it embodies rational choices and that the road leading to those choices has been a long and difficult one.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 143 of 158 PageID #: 785

Nos. 12-3841 & 13-1077

141

Compelling government interests in both preventive health care and gender equality support the inclusion of contraceptives within the mandated coverage that insurance plans—including employer-sponsored plans—must provide without copayment by the insured. As the court has noted, included with the standard coverage required of all nongrandfathered health plans are a series of preventive services that must be provided to all adults without copayment, including immunizations for tetatanus, meningitis, measles, influenza, hepatitis B, and other communicable diseases; screening for high cholesterol, diabetes, HIV infection, high blood pressure, colorectal cancer, and other potentially lifethreatening conditions; and both screening and counseling for alcohol abuse, tobacco use, and obesity. See http://www.healthcare.gov/what-are-my-preventive-carebenefits (last visited Nov. 7, 2013). The rationale behind requiring coverage of such services without copayment is obvious: these are services which either prevent illness altogether or facilitate detection at an earlier stage when it is more amenable to treatment, thereby reducing the direct and indirect costs of illness otherwise borne by the insured, his family, his employer, his insurer, medical providers, and the government. The Women’s Health Amendment to the ACA, spearheaded by U.S. Senator Barbara Mikulski, expanded the range of requisite preventive care to include a separate set of preventive services for women. In proposing the amendment, Senator Mikulski noted that many women forego preventive screenings for the conditions that statistically are most likely to result in their death—breast, cervical, colorectal, ovarian and lung cancer, and heart and vascular disease—either because

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 144 of 158 PageID #: 786

142

Nos. 12-3841 & 13-1077

they lack insurance, the services are not covered by their insurance plans, or because the large copayments required by their insurance companies for these screenings are beyond their financial means. “Women of childbearing age incur 68 percent more out of pocket health care costs than men,” she pointed out. “My amendment guarantees access to critical preventive screening and care for women to combat their number one killers and provides it at no cost. This amendment eliminates a big barrier of high copayments.” Press release: Mikulski Puts Women First in Health Care Debate (November 30, 2009), available at http://www.mikulski.senate.gov/media/ pressrelease/11-30-2009-2.cfm (last visited Nov. 7, 2013); see also Jessica Arons & Lindsay Rosenthal, Center for American Progress, Facts About the Health Insurance Compensation Gap (June 2012) (“Even with employer-based coverage, women have higher out-of-pocket medical costs than men. Overall, women of reproductive age spend 68 percent more out of pocket than men on health care, in part because their reproductive health care needs require more frequent health care visits and are not always adequately covered by their insurance. Among women insured by employer-based plans, oral contraceptives alone account for one-third of their total out-of-pocket health care spending.”), available at http://www.americanprogress.org/issues/healthcare/news/ 2012/06/01/11666/facts-about-the-health-insurance-compensa tion-gap/ (last visited Nov. 7, 2013). As the court has noted, with the passage of the Women’s Health Amendment, a panel of experts convened by the Institute of Medicine determined based on evidence-based criteria what preventive services were necessary to promote and protect women’s health and

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 145 of 158 PageID #: 787

Nos. 12-3841 & 13-1077

143

therefore ought to be included—at no additional cost to the insured individual—in the standard health coverage required of all non-grandfathered insurance plans. Covered services now include, in addition to contraception: breast cancer mammography, genetic screening, and chemoprevention counseling; screening for a variety of sexually-transmitted diseases including chlamydia, gonorrhea, syphilis, HIV, and human papillomavirus; and screenings for hepatitis B, cervical cancer, gestational diabetes, osteoporosis, and urinary tract infections. See http://www.healthcare.gov/what-are-mypreventive-care-benefits (last visited Nov. 7, 2013); see also U.S. Dep’t of Health & Human Servs., Health Resources & Servs. Admin., Women’s Preventive Services Guidelines, available at http://www.hrsa. gov/womensguidelines/ (last visited Nov. 7, 2013).
It should come as no surprise that contraceptive care was included in the set of preventive services that the Institute of Medicine panel deemed essential to women’s health. Ninetynine percent of American women aged 15 to 44 who have engaged in sex with men have used at least one form of birth control. Institute of Medicine, Committee on Preventive Services for Women, Clinical Preventive Services for Women: Closing the Gaps, 103 (2011), available at http://www. nap.edu/catalog.php?record_id=13181; Guttmacher Institute, Fact Sheet: Contraceptive Use in the United States, at 1 (Aug. 2013), available at http://www.guttmacher.org/pubs/ fb_contr_usc.pdf (last visited Nov. 7, 2013); William D. Mosher & Jo Jones, Centers for Disease Control, Nat’l. Ctr. for Health Statistics, Use of Contraception in the United States: 1928-2008, 5, 15, & Table 1 (Aug. 2010), available at http://www.cdc.gov/

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 146 of 158 PageID #: 788

144

Nos. 12-3841 & 13-1077

nchs/data/series/sr_23/sr23_029.pdf (last visited Nov. 7, 2013. A woman’s ability to control whether and when she will become pregnant has highly significant impacts on her health, her child’s health, and the economic well-being of herself and her family. Unintended pregnancies pose risks to both mother and fetus in that a woman, neither planning to be pregnant nor realizing that she is, may both delay prenatal care and continue practices (including smoking and drinking) that endanger the health of the developing fetus. Id. at 103. Pregnancy is contraindicated altogether for women with certain health conditions. Id. at 103–04. Intervals between pregnancies also matter, as pregnancies commencing less than eighteen months after a prior delivery pose higher risks of pre-term births and low birth weight. Id. at 103. An unintended pregnancy may also put financial strain on the woman and her family, to the extent that the birth will require her to take time off from work, may cause her to quit work altogether if she does not have or cannot afford to pay for alternate childcare, and adds substantial, unplanned-for expenses to the family budget. Unintended pregnancies resulting in birth also impose large costs on the public fisc: In 2008, for example, 65 percent of births resulting from unintended pregnancies were paid for by public insurance programs (primarily Medicaid) and resulted in total estimated costs of $12.5 billion. Guttmacher Institute, Fact Sheet: Facts on Unintended Pregnancy in the United States (Oct. 2013), available at http://www.guttmacher.org/pubs/ FB-Unintended-Pregnancy-US.html (last visited Nov. 7, 2013). Finally, unintended and unwanted pregnancies naturally account for the lion’s share of induced abortions. Currently, nearly one-half (49 percent) of all pregnancies in the United

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 147 of 158 PageID #: 789

Nos. 12-3841 & 13-1077

145

States are unintended, and roughly 40 percent of those pregnancies (22 percent of all pregnancies) end in abortion, resulting in more than 1.2 million abortions annually as of 2008. Guttmacher Institute, In Brief: Facts on Induced Abortion in the United States (Oct. 2013), available at http://www. guttmacher.org/pubs/fb_induced_abortion.html (last visited Nov. 7, 2013). Abortions themselves have economic costs (roughly 20 percent are paid for by Medicaid, for example, see id.), and, as important, because many Americans oppose abortions on moral grounds, the government has a legitimate interest in reducing the abortion rate. See Planned Parenthood of Se. Penn. v. Casey, supra, 505 U.S. at 883, 112 S. Ct. at 2824 (state may express preference for childbirth over abortion); Michael M. v. Superior Ct. of Sonoma Cnty., 450 U.S. 464, 470–71 & n.5, 101 S. Ct. 1200, 1205 & n.5 (1981) (noting that statutory rape law was justified by state’s “strong interest” in preventing outof-wedlock teenage pregnancies and thereby, inter alia, reducing abortion rate); Choose Life Illinois, Inc. v. White, 547 F.3d 853, 868 (7th Cir. 2008) (Manion, J., concurring); but see Gilardi, 2013 WL 5854246, at *12 (although government’s asserted interests in abortion cases have been described as “legitimate and substantial,” they have never been described as compelling). Ready access to contraception thus not only maximizes the ability of women to become pregnant only if and when they and their partners are prepared to shoulder the responsibilities of parenthood, but could well lower the rate of abortion. See Institute of Medicine, Clinical Preventive Services for Women, at 109 (eliminating or reducing out-of-pocket costs of contraception makes it more likely women will use more effective methods of contraception) (citing Debbie

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 148 of 158 PageID #: 790

146

Nos. 12-3841 & 13-1077

Postlethwaite, et al., A comparison of contraceptive procurement pre-and post-benefit changes, CONTRACEPTION 76(5): 360–365 (2007)); Jeffrey F. Peipert, et al., Preventing Unintended Pregnancies By Providing No-Cost Contraception, 120 Obstetrics & Gynecology 1291 (Oct. 2012); Amy Deschner & Susan A. Cohen, Contraceptive Use Is Key to Reducing Abortion Worldwide, 6 GUTTMACHER REPORT ON PUBLIC POLICY No. 4 (Oct. 2003), available at http://www.guttmacher.org/pubs/tgr/06/4/ gr060407.html (last visited Nov. 7, 2013); John Bongaarts & Charles F. Westoff, The Potential Role of Contraception in Reducing Abortion, 31 STUDIES IN FAMILY PLANNING 193 (Sept. 2000).
The right to use contraception is, of course, constitutionally protected. See Griswold v. Connecticut, 381 U.S. 479, 485–86, 85 S. Ct. 1678, 1682 (1965) (state statute forbidding use of contraceptives impermissibly intrudes on right of marital privacy); Eisenstadt v. Baird, 405 U.S. 438, 453–55, 92 S. Ct. 1029, 1038–39 (1972) (state statute forbidding distribution of contraceptives to unmarried persons violates equal protection clause of Fourteenth Amendment). As the Court put it in Eisenstadt, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id. at 453, 92 S. Ct. at 1038.
I am also convinced that making contraceptive coverage part of the standardized insurance that non-grandfathered employers must provide to their employees is the least restrictive means of furthering these compelling interests. I have my doubts about the feasibility of creating, let alone

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 149 of 158 PageID #: 791

Nos. 12-3841 & 13-1077

147

enacting, a publicly-funded contraception plan, or establishing a system of tax credits to contraceptive manufacturers or the women who use contraception, given that it has taken more than 60 years to enact a health insurance reform effort on the scale of the Affordable Care Act, and given the controversies that inevitably surround the reproductive rights of women. At the very least, it is unlikely that any such plan will be established in the near future. Putting that aside, we must consider that the entire point of the Women’s Health Amendment to the ACA was to redress a history of gender-based inequalities in healthcare and health insurance. Carving out from the standard insurance coverage mandated by the ACA a type of healthcare that a panel of experts has determined to be vital to the health needs of women, and saying that it must be provided for separately, reinforces the very disparities that motivated the Amendment. Additional transaction costs surely will attend the creation of a separate plan devoted to contraception, be it a public option or a set of tax incentives, and the segregation of this form of healthcare from standard insurance coverage will stigmatize both these services and the employees who wish to access them.15 This could hardly be more inconsistent with the intent underlying the Women’s Health Amendment. Cf. Romer v. Evans, supra, 517 U.S. at 630–31, 116 S. Ct. at

15 A woman would either have to enroll in a government program dedicated to providing contraceptive insurance coverage, establish a relationship with a government-subsidized contraceptive manufacturer, or claim credits for the purchase of contraception on her income tax return. Each alternative, aside from imposing extra burdens on her to obtain contraceptive coverage, singles her out as a sexually-active woman who wishes to use contraception.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 150 of 158 PageID #: 792

148

Nos. 12-3841 & 13-1077

1626–27 (observing that state constitutional provision foreclosing to gays and lesbians the protections of nondiscrimination laws imposes a unique disability on that class of individuals); United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (reasoning that denying federal recognition to same-sex marriages authorized by state law “impose[s] a disadvantage, a separate status, and so a stigma on all who enter same-sex marriages made lawful by the unquestioned authority of the States”).
Nor can we view the contraception provisions of the ACA in isolation. As I have now pointed out several times, the contraception mandate is merely one requirement in a comprehensive set of requirements that the statute imposes on all health plans, and as I have discussed, there are any number of medical services that health plans cover and medical choices that an insured might make to which a particular employer might object on religious grounds. Logically, the court’s decision to relieve Korte & Luitjohan Contractors and Grote Industries of the contraception mandate cannot be limited to contraception alone. The relevant question, then, is not whether the government feasibly may ensure access to contraceptive care through other means, but whether it may feasibly ensure access to all types of care to which employers might object on religious grounds. The answer to that is obvious: it is not feasible to expect the government to establish a public insurance option that picks up responsibility for the crazy-quilt of individual services that any individual employer might find incompatible with his individual religious beliefs.
The Supreme Court remarked in Lee that “[r]eligious beliefs can be accommodated, but there is a point at which accommodation would ‘radically restrict the operational latitude of the

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 151 of 158 PageID #: 793

Nos. 12-3841 & 13-1077

149

legislature.’” 455 U.S. at 259, 102 S. Ct. at 1056 (quoting Braunfeld, 366 U.S. at 606, 81 S. Ct. at 1147) (additional citations omitted). In a pluralistic society with many religions and even more variants of religious beliefs, it would be impossible to move toward a system of universal healthcare that relies substantially on employer-sponsored health insurance while permitting corporate owners with objections to particular types of health services or specific decisions about how to use those services to exclude them from workplace health plans. Even if the government chose instead to pursue universal healthcare through the means of an entirely publicly-funded, single-payer system of health insurance, corporate owners as taxpayers would still be facilitating contraception and other healthcare services to which they object. The decision in Lee makes clear that the government would not be required to accommodate religious-based objections where the program in question is funded through general revenues. Indeed, the Kortes’ counsel conceded at oral argument that even an employer tax dedicated to a public program underwriting contraception might be upheld under Lee’s analysis. Taxpayer funding facilitates contraception just as much as any other means of financing. Granted, by making the government the middleman, taxpayer financing separates a corporate owner from his employee’s use of contraception. But as I have already pointed out, in the context of employer-financing of insurance, the corporate form, the health plan’s separate identity, third-party administration of the health plan, and the private choices of employees and their physicians, similarly place corporate owners at a remove from an employee’s decision to use contraception. Insisting on an exception in one setting but not the other makes no sense,

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 152 of 158 PageID #: 794

150

Nos. 12-3841 & 13-1077

when in both cases corporate owners are lending support to a type of healthcare they find objectionable, but in neither case are they in any meaningful sense a party to an individual’s decision to use that service.
The exemptions already provided for in the ACA neither undermine the compelling nature of the government’s interests in broadening Americans’ access to healthcare and ensuring that women have comprehensive healthcare nor do they make religious-based exemptions any more reasonable or feasible. First, given the financial burdens associated with workplace health plans, exempting employers with fewer than 50 fulltime employees from the obligation to provide insurance is an entirely practical, logical, and justifiable accommodation to the financial needs of small employers, particularly in the first phase of a national effort to expand access to healthcare. Individuals who work for those employers, like part-time employees, self-employed individuals, and unemployed individuals are steered to the insurance exchanges established under the ACA, where the government offers subsidies to those who cannot shoulder the full cost of insurance on their own. Likewise, grandfathering existing workplace health plans follows a time-honored and common-sensical path in expediting the implementation of a new, complex, and potentially burdensome regulation. Employees participating in those plans by definition already have health insurance, so the accommodation to employers represented by this exemption does not unduly burden employees nor undermine the central goal of the legislation. Existing plans will lose the benefit of this exemption as they make major changes to their health plans that, inter alia, reduce benefits or increase costs to

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 153 of 158 PageID #: 795

Nos. 12-3841 & 13-1077

151

employees. 45 C.F.R. § 147.140(g). There is no reason to think this will take long for most employers,16 given the cost and complexity of insuring a broad range of healthcare and the market forces which prompt employers to make such revisions on a regular basis; and, again, in the absence of such changes, employees remain covered by the grandfathered plans, so the goal of access to health insurance is served. Odds are, many of these grandfathered plans already cover contraceptive care to some degree. See Institute of Medicine, Clinical Preventive Services for Women, 49, 108–09 (as of 2010, 85% of large and 62% of small health plans covered contraception) (citing Gary Claxton, et al., Kaiser Family Found., ANNUAL SURVEY OF EMPLOYER HEALTH BENEFITS, 186 (2010), available at http:// kaiser familyfoundation.files.wordpress.com/2013/04/8085.pdf (last visited Nov. 7, 2013)); see also Guttmacher Institute, STATE POLICIES IN BRIEF, Insurance Coverage of Contraceptives (surveying state laws which require insurers to cover contraceptives), available at http://www.guttmacher.org/statecenter/spibs/ spib_ICC.pdf (last visited Nov. 7, 2013). Finally, the fact that the ACA contains an exemption for religious employers—which is the sole permanent exemption from the contraception mandate, see Gilardi, 2013 WL 5854246, at *33 (Edwards, J., concurring in part & dissenting in part)—by no means demonstrates that an exemption is required for any

16 The government’s mid-range estimate is that “66 percent of small employer plans and 45 percent of large employer plans will relinquish their grandfather status by the end of 2013.” Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 34,538, at 34,552 (June 17, 2010).

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 154 of 158 PageID #: 796

152

Nos. 12-3841 & 13-1077

employer with a potential religious objection to contraception or any other type of healthcare. That type of exemption is a feature common to any number of federal statutes, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1(a), and the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12113(d), 12187; see Gilardi, 2013 WL 5854246, at *33–*34 (Edwards, J., concurring in part & dissenting in part). And there is a demonstrable difference between a not-for-profit employer whose mission is expressly defined by religious goals and a secular corporation whose business is commerce for profit.
7.
Speaking for the Court in Lyng v. Nw. Indian Cemetery Protective Ass’n, Justice O’Connor had this to say about the limited reach of the free exercise clause:
However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires. A broad range of government activities—from social welfare programs to foreign aid to conservation projects—will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 155 of 158 PageID #: 797

Nos. 12-3841 & 13-1077

153

free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent it is feasible, is for the legislatures and other institutions.
485 U.S. at 452, 108 S. Ct. at 1327 (citation omitted).
What the plaintiffs seek accommodation for here is a demand on their conduct, rather than their religious beliefs; and the Court has always recognized that “the freedom to act, even where the action is in accord with one’s religious convictions, is not totally free from legislative restrictions.” Braunfeld, 366 U.S. at 603, 81 S. Ct. at 1146 (citing Cantwell v. Connecticut, 310 U.S. 296, 303–04, 306, 60 S. Ct. 900, 903–04 (1940)); see also, e.g., Employ. Div. v. Smith, supra, 494 U.S. at 878–80, 110 S. Ct. at 1600; Bowen v. Roy, supra, 476 U.S. at 699, 106 S. Ct. at 2152; Wisconsin v. Yoder, supra, 406 U.S. at 219–20, 92 S. Ct. at 1535; Baird v. State Bar of Ariz., 401 U.S. 1, 5–6, 91 S. Ct. 702, 705–06 (1971); Sch. Dist. of Abington Twp., Pennsylvania v. Schempp, 374 U.S. 203, 217–18, 83 S. Ct. 1560, 1569 (1963); Sherbert v. Verner, supra, 374 U.S. at 402–03, 83 S. Ct. at 1793; United States v. Ballard, 322 U.S. 78, 86, 64 S. Ct. 882, 886 (1944). Furthermore, the conduct for which the Kortes and the Grotes seek an exemption is their conduct as corporate owners in the commercial world; moreover, it is also conduct that implicates the rights of third parties—their employees. The reach of the free exercise clause in this setting is quite limited, whereas the government’s interests in pursuing the uniform application of

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 156 of 158 PageID #: 798

154

Nos. 12-3841 & 13-1077

a religiously-neutral statute promoting the rights of employees is quite strong.
The court’s holding granting the Kortes and the Grotes, along with their two secular corporations, a religiously-based exemption from an insurance mandate represents a dramatic turn in free exercise jurisprudence for all of the reasons I have discussed. It bestows a highly personal right to religious exercise on two secular, for-profit corporations that have no facility of thought, conscience, or belief. It deems the religious rights of the plaintiffs burdened by the contraceptive mandate without consideration of the indirect and minimal intrusion on their exercise of religion. And it disregards the extent to which the exemption from the mandate burdens the rights of the plaintiffs’ employees. Finally, it establishes a precedent which invites free-exercise challenges to a host of federal laws by secular corporations which, in reality, have no religious beliefs of their own and cannot exercise religion.
For all of these reasons I have set forth here, in my prior dissents, Korte v. Sebelius, 2012 WL 6757353, at *5–*6 (7th Cir. Dec. 28, 2012), Grote v. Sebelius, 708 F.3d at 855–867, and in the well-reasoned opinions of Judge Reagan, Korte v. U.S. Dep’t of Health & Human Servs., supra, 912 F. Supp. 2d 735, and Judge Barker, Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012), below, I would affirm the district courts’ decisions to deny the plaintiffs’ requests for preliminary injunctive relief.
I respectfully dissent.

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 157 of 158 PageID #: 799

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

November 8, 2013 Before:

FINAL JUDGMENT
JOEL M. FLAUM, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DIANE S. SYKES, Circuit Judge

CYRIL B. KORTE, et al., Plaintiffs - Appellants

No.: 12-3841

v.

KATHLEEN SEBELIUS, Secretary of Health and Human Services, et al., Defendants - Appellees
WILLIAM D. GROTE, III, et al., Plaintiffs - Appellants

No.: 13-1077

v.

KATHLEEN SEBELIUS, Secretary of Health and Human Services, et al., Defendants - Appellees
Originating Case Information:
District Court No: 3:12-cv-01072-MJR-PMF Southern District of Illinois District Judge Michael J. Reagan
Originating Case Information:
District Court No: 4:12-cv-00134-SEB-DML Southern District of Indiana, New Albany Division District Judge Sarah Evans Barker

We REVERSE, with costs, and REMAND with instructions to enter preliminary injunctions barring enforcement of the contraception mandate against the plaintiffs. The above is in accordance with the decision of this court entered on this date.

form name: c7_FinalJudgment(form ID: 132)

Case 4:12-cv-00134-SEB-DML Document 54 Filed 12/31/13 Page 158 of 158 PageID #: 800

United States Court of Appeals
ForȱtheȱSeventhȱCircuit Chicago,ȱIllinoisȱ60604

Novemberȱ19,ȱ2013

Before

ILANAȱDIAMONDȱROVNER,ȱCircuitȱJudge

No.ȱ12Ȭ3841 CYRILȱB.ȱKORTE,ȱetȱal.,
PlaintiffsȬAppellants

AppealȱfromȱtheȱUnitedȱStatesȱDistrict CourtȱforȱtheȱSouthernȱDistrictȱofȱIllinois.

v.

No.ȱ3:12ȬCVȬ01072ȬMJR

KATHLEENȱSEBELIUS,ȱSecretaryȱof Healthȱ&ȱHumanȱServices,ȱetȱal.,
DefendantsȬAppellees.

MichaelȱJ.ȱReagan,ȱJudge.

_____________________________________________________________________________

No.ȱ13Ȭ1077 WILLIAMȱD.ȱGROTE,ȱIII,ȱetȱal.,
Plaintiff’sȱAppellants,
v.
KATHLEENȱSEBELIUS,ȱSecretaryȱof Healthȱ&ȱHumanȱServices,ȱetȱal.,
DefendantsȬAppellees.

AppealȱfromȱtheȱUnitedȱStatesȱDistrictȱCourt forȱtheȱSouthernȱDistrictȱofȱIndiana, NewȱAlbanyȱDivision.
No.ȱ4:12ȬcvȬ00134ȬSEBȬDML
SarahȱEvansȱBarker,ȱJudge.

ORDER

JudgeȱRovner’sȱdissentȱinȱtheȱopinionȱofȱtheseȱcasesȱissuedȱonȱNovemberȱ8,ȱ2013,ȱis amendedȱasȱfollows:

Pageȱ76,ȱ1stȱfullȱparagraph,ȱlineȱ1,ȱ“fair”ȱshouldȱbeȱ“fare.”

 
 Case 4:12-cv-00134-SEB-DML Document 58 Filed 02/20/14 Page 1 of 2 PageID #: 808

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

GROTE INDUSTRIES, LLC an Indiana

)

limited liability company,

)

et al.

)

Plaintiffs,

)

)

vs.

)

) No. 4:12-cv-00134-SEB-DML

KATHLEEN SEBELIUS in her official

)

capacity as Secretary of the United States

)

Department of Health and Human Services, )

et al.

)

Defendants.

)

ORDER GRANTING PRELIMINARY INJUNCTION In accordance with the Seventh Circuit Court of Appeals’s decision in Korte v. Sebelius, 735 F.3d 654, 659 (7th Cir. 2013), with “instructions to enter preliminary injunctions barring enforcement of the [contraceptive-coverage requirement] against [Plaintiffs],” Defendants, their agents, officers, and employees are hereby ENJOINED from enforcing against Plaintiffs, their employee health plans, the group health insurance coverage provided in connection with such plans, and/or their insurers the statute and regulations that require Plaintiffs to provide their employees health coverage for “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity, as prescribed by a health care provider,” 77 Fed. Reg. 8725 (Feb. 15, 2012), as well as any penalties, fines, assessments, or any other enforcement actions for noncompliance with such requirement, including those found in 26 U.S.C. § 4980D and 29 U.S.C. § 1132.

Case 4:12-cv-00134-SEB-DML Document 58 Filed 02/20/14 Page 2 of 2 PageID #: 809

Other proceedings in this case are hereby STAYED pending the outcome of the Hobby Lobby and Conestoga cases, Nos. 13-354 and 13-356, currently pending before the United States Supreme Court. For purposes of docket management, this case is administratively closed without prejudice to the right of any party to move to reopen it within 60 days after the United States Supreme Court rules.
IT IS SO ORDERED.

Date: ____0_2_/2_0_/_2_0_1_4_____________

_______________________________
SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana

Copies to: Electronically registered counsel of record via ECF.

 
 Case 4:12-cv-00134-SEB-DML Document 66 Filed 04/30/15 Page 1 of 4 PageID #: 842

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

GROTE INDUSTRIES, LLC an Indiana )

limited liability company,

)

et al.

)

Plaintiffs,

)

)

vs.

)

)

SYLVIA M. BURWELL, in her official )

capacity as Secretary of the United States )

Department of Health and Human Services, )

et al.

)

Defendants. )

4:12-cv-00134-SEB-DML

INJUNCTION AND JUDGMENT

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

134 S. Ct. 2751 (2014), the Seventh Circuit’s decision in this case, and upon

consideration of the parties’ Joint Status Report as well as the entire record before us,

IT IS ORDERED as follows:

(1) Defendants,1 their employees, agents, and successors in office are permanently

ENJOINED from enforcing:

a. 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 Plaintiffs to provide

1 Plaintiffs’ complaint initially named Kathleen Sebelius in her official capacity as Secretary of Health and Human Services. However, since that time, Sylvia M. Burwell has replaced Ms. Sebelius in that position. Pursuant to Federal Rule of Civil Procedure 25(d), Ms. Burwell is substituted as a party.
1

Case 4:12-cv-00134-SEB-DML Document 66 Filed 04/30/15 Page 2 of 4 PageID #: 843
their employees with health coverage for contraceptive methods, sterilization procedures, and other related patient education and counseling to which Plaintiffs object on religious grounds, e.g., 26 C.F.R. § 54.98152713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and b. 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 (2) Defendants, their employees, agents, and successors in office are permanently ENJOINED from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement against Plaintiffs, their employee health plan(s), the group health coverage provided in connection with such plan(s), and/or Plaintiffs’ health insurance issuers and/or third-party administrators with respect to Plaintiffs’ health plan(s). IT IS 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 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.
2

Case 4:12-cv-00134-SEB-DML Document 66 Filed 04/30/15 Page 3 of 4 PageID #: 844 Finally, the parties are ORDERED to confer and attempt to reach agreement on
attorneys’ fees and costs. If the parties are unable to reach agreement on these matters, Plaintiffs may file a motion for attorneys’ fees and costs within 45 days of the entry of this Judgment.
IT IS SO ORDERED. Date: ______0_4_/3_0_/_2_0_1_5_________
3

Case 4:12-cv-00134-SEB-DML Document 66 Filed 04/30/15 Page 4 of 4 PageID #: 845
Distribution: Matthew S. Bowman ALLIANCE DEFENDING FREEDOM mbowman@alliancedefendingfreedom.org Michael J. Cork BAMBERGER, FOREMAN, OSWALD AND HAHN, LLP mcork@bamberger.com Michael A. Wilkins BROYLES KIGHT & RICAFORT, P.C. mwilkins@bkrlaw.com Bryan H. Beauman STURGILL, TURNER, BARKER & MOLONEY, PLLC bbeauman@sturgillturner.com Shelese M. Woods UNITED STATES ATTORNEY'S OFFICE shelese.woods@usdoj.gov Jacek Pruski US DEPARTMENT OF JUSTICE jacek.pruski@usdoj.gov
4

 
 Case: 13-1077 Document: 117

Filed: 08/12/2014 Pages: 2

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 - 219 S. Dearborn Street Chicago, Illinois 60604

Office of the Clerk Phone: (312) 435-5850 www.ca7.uscourts.gov

ORDER

August 12, 2014

Before

DIANE S. SYKES, Circuit Judge

No.: 12-3841

CYRIL B. KORTE, et al., Plaintiffs - Appellants v. U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES, et al., Defendants - Appellees

No.: 13-1077

WILLIAM D. GROTE, III, et al., Plaintiffs - Appellants v. KATHLEEN SEBELIUS, Secretary of Health and Human Services, et al., Defendants - Appellees

Originating Case Information:

District Court No: 3:12-cv-01072-MJR-PMF Southern District of Illinois

Originating Case Information:

District Court No: 4:12-cv-00134-SEB-DML Southern District of Indiana, New Albany Division
The following is before the court:

1. KORTE PLAINTIFFS-APPELLANTS’ VERIFIED BILL OF COSTS, filed on November15, 2013, by counsel for the Korte appellants.

2. GROTE PLAINTIFFS-APPELLANTS’ VERIFIED BILL OF COSTS, filed on November 21, 2013, by counsel for the Grote appellants.

3. STATUS REPORT ON BILL OF COSTS, filed on August 8, 2014, by counsel for the government,

- over -

Case: 13-1077 Document: 117 Appeal Nos. 12-3841 & 13-1077

Filed: 08/12/2014 Pages: 2 Page 2

IT IS ORDERED that the appellants in appeal no. 12-3841 are awarded $578.80 in costs and the appellants in appeal no. 13-1077 are awarded $845.16 in costs.

 
 Case: 4:12-cv-134 As of: 11/11/2017 08:40 PM EST 1 of 11
MANDATE,CLOSED
U.S. District Court Southern District of Indiana (New Albany) CIVIL DOCKET FOR CASE #: 4:12−cv−00134−SEB−DML

GROTE INDUSTRIES, LLC et al v. SEBELIUS et al Assigned to: Judge Sarah Evans Barker Referred to: Magistrate Judge Debra McVicker Lynch Case in other court: 7th Circuit, 13−01077 − Mandate Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 10/29/2012 Date Terminated: 04/30/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

GROTE INDUSTRIES, LLC an Indiana limited liability company

represented by Bryan H. Beauman STURGILL, TURNER, BARKER & MOLONEY, PLLC 333 West Vine Street Suite 1400 Lexington, KY 40507 (859) 255−8581 Fax: (859) 231−0851 Email: bbeauman@sturgillturner.com PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew S. Bowman ALLIANCE DEFENDING FREEDOM 801 G Street, NW Suite 509 Washington, DC 20001 202−393−8690 Fax: 202−347−3622 Email: mbowman@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

Michael A. Wilkins BROYLES KIGHT & RICAFORT, P.C. 8250 Haverstick Road Suite 100 Indianapolis, IN 46240 (317) 571−3600 Fax: (317) 571−3610 Email: mwilkins@bkrlaw.com ATTORNEY TO BE NOTICED

Michael J. Cork BAMBERGER, FOREMAN, OSWALD AND HAHN, LLP 201 N. Illinois Street, Suite 1225 Indianapolis, IN 46204 (317)464−1591 Fax: (317)464−1592 Email: mcork@bamberger.com ATTORNEY TO BE NOTICED

Plaintiff
GROTE INDUSTRIES, INC. an Indiana corporation

represented by Bryan H. Beauman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew S. Bowman (See above for address)

Case: 4:12-cv-134 As of: 11/11/2017 08:40 PM EST 2 of 11

ATTORNEY TO BE NOTICED

Michael A. Wilkins (See above for address) ATTORNEY TO BE NOTICED

Michael J. Cork (See above for address) ATTORNEY TO BE NOTICED

Plaintiff WILLIAM D. GROTE, III

represented by Bryan H. Beauman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew S. Bowman (See above for address) ATTORNEY TO BE NOTICED

Michael A. Wilkins (See above for address) ATTORNEY TO BE NOTICED

Michael J. Cork (See above for address) ATTORNEY TO BE NOTICED

Plaintiff WILLIAM DOMINIC GROTE, IV

represented by Bryan H. Beauman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew S. Bowman (See above for address) ATTORNEY TO BE NOTICED

Michael A. Wilkins (See above for address) ATTORNEY TO BE NOTICED

Michael J. Cork (See above for address) ATTORNEY TO BE NOTICED

Plaintiff WALTER F. GROTE, JR.

represented by Bryan H. Beauman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew S. Bowman (See above for address) ATTORNEY TO BE NOTICED

Michael A. Wilkins (See above for address) ATTORNEY TO BE NOTICED

Michael J. Cork (See above for address) ATTORNEY TO BE NOTICED

Case: 4:12-cv-134 As of: 11/11/2017 08:40 PM EST 3 of 11

Plaintiff MICHAEL R. GROTE
Plaintiff W. FREDERICK GROTE, III
Plaintiff JOHN R. GROTE

represented by Bryan H. Beauman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S. Bowman (See above for address) ATTORNEY TO BE NOTICED
Michael A. Wilkins (See above for address) ATTORNEY TO BE NOTICED
Michael J. Cork (See above for address) ATTORNEY TO BE NOTICED
represented by Bryan H. Beauman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S. Bowman (See above for address) ATTORNEY TO BE NOTICED
Michael A. Wilkins (See above for address) ATTORNEY TO BE NOTICED
Michael J. Cork (See above for address) ATTORNEY TO BE NOTICED
represented by Bryan H. Beauman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S. Bowman (See above for address) ATTORNEY TO BE NOTICED
Michael A. Wilkins (See above for address) ATTORNEY TO BE NOTICED
Michael J. Cork (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
SYLVIA M. BURWELL in her official capacity as Secretary of the United States Department of Health and Human Services

represented by Jacek Pruski US DEPARTMENT OF JUSTICE 20 Massachusetts Ave. NW Washington, DC 20001

Case: 4:12-cv-134 As of: 11/11/2017 08:40 PM EST 4 of 11

202−616−2035 Fax: 202−616−8470 Email: jacek.pruski@usdoj.gov ATTORNEY TO BE NOTICED

Julie Shana Saltman United States Department of Justice Federal Programs Branch 20 Nassachusetts Ave, NW Suite 7136 Washington, DC 20530 Email: julie.saltman@usdoj.gov ATTORNEY TO BE NOTICED

Shelese M. Woods UNITED STATES ATTORNEY'S OFFICE 10 West Market Street Suite 2100 Indianapolis, IN 46204 (317) 226−6333 Fax: (317) 226−5027 Email: shelese.woods@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
HILDA L. SOLIS in her official capacity as Secretary of the United States Department of Labor

represented by Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) ATTORNEY TO BE NOTICED

Shelese M. Woods (See above for address) ATTORNEY TO BE NOTICED

Defendant
TIMOTHY GEITHNER in his official capacity as Secretary of the United States Department of the Treasury

represented by Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) ATTORNEY TO BE NOTICED

Shelese M. Woods (See above for address) ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

represented by Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) ATTORNEY TO BE NOTICED

Shelese M. Woods (See above for address) ATTORNEY TO BE NOTICED

Case: 4:12-cv-134 As of: 11/11/2017 08:40 PM EST 5 of 11

Defendant UNITED STATES DEPARTMENT OF LABOR
Defendant UNITED STATES DEPARTMENT OF THE TREASURY

represented by Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) ATTORNEY TO BE NOTICED
Shelese M. Woods (See above for address) ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) ATTORNEY TO BE NOTICED
Shelese M. Woods (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/29/2012 10/29/2012
10/29/2012 10/30/2012
10/30/2012 10/30/2012 10/30/2012
10/30/2012

# Docket Text
1 COMPLAINT Verified against All Defendants, filed by All Plaintiffs. (Filing fee $ 350, receipt number 0756−2483770) (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons)(Cork, Michael) (Entered: 10/29/2012)
2 NOTICE of Appearance by Michael J. Cork on behalf of Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Cork, Michael) (Entered: 10/29/2012)
3 Corporate Disclosure Statement by GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC identifying Corporate Parent GROTE INDUSTRIES, INC. for GROTE INDUSTRIES, INC... (Cork, Michael) (Entered: 10/29/2012)
4 NOTICE of Appearance by Michael A. Wilkins on behalf of Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Wilkins, Michael) (Entered: 10/30/2012)
5 Summons Issued as to USA − TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (JLM) (Entered: 10/30/2012)
6 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (JLM) (Entered: 10/30/2012)
7 MOTION for Preliminary Injunction , filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Attachments: # 1 Text of Proposed Order)(Cork, Michael) (Entered: 10/30/2012)
8 MOTION for Leave to File Excess Pages Brief in Support of 7 Motion for Preliminary Injunction, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W.

Case: 4:12-cv-134 As of: 11/11/2017 08:40 PM EST 6 of 11

10/30/2012 11/13/2012 11/13/2012 11/13/2012 11/19/2012 11/19/2012 11/19/2012
11/19/2012 11/19/2012 11/20/2012 11/20/2012

FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Attachments: # 1 Exhibit Memorandum of Law in Support of Motion for Preliminary Injunction, # 2 Text of Proposed Order)(Cork, Michael) Modified on 10/31/2012 to create link to Doc #7 (JLM). (Entered: 10/30/2012)
9 MOTION for Emergency Hearing re 7 MOTION for Preliminary Injunction Request for Oral Argument, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Attachments: # 1 Text of Proposed Order)(Cork, Michael) (Entered: 10/30/2012)
10 CERTIFICATE OF SERVICE by All Plaintiffs re 7 MOTION for Preliminary Injunction Corrected Certificate of Service (Cork, Michael) (Entered: 11/13/2012)
11 CERTIFICATE OF SERVICE by All Plaintiffs re 8 MOTION for Leave to File Excess Pages Brief in Support of Motion for Preliminary Injunction ,Corrected Certificate of Service (Cork, Michael) (Entered: 11/13/2012)
12 CERTIFICATE OF SERVICE by All Plaintiffs re 9 MOTION for Emergency Hearing re 7 MOTION for Preliminary Injunction Request for Oral Argument , Corrected Certificate of Service (Cork, Michael) (Entered: 11/13/2012)
13 NOTICE of Appearance by Jacek Pruski on behalf of Defendants TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Pruski, Jacek) (Entered: 11/19/2012)
14 MOTION to Dismiss , filed by Defendants TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Pruski, Jacek) (Entered: 11/19/2012)
15 RESPONSE in Opposition re 7 MOTION for Preliminary Injunction , and Brief in Support of 14 Motion to Dismiss, filed by Defendants TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Exhibit Order Denying Preliminary Injunction in Hobby Lobby Stores, Inc. v. Sebelius)(Pruski, Jacek) Modified on 11/20/2012 to remove unncessary wording (JLM). (Entered: 11/19/2012)
16 ***PLEASE DISREGARD*** MOTION for Leave to File Oversized Brief, filed by Defendants TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Pruski, Jacek) Modified on 11/20/2012 (JLM). (Entered: 11/19/2012)
17 MOTION for Leave to File Oversized Brief, filed by Defendants TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Text of Proposed Order)(Pruski, Jacek) (Entered: 11/19/2012)
18 NOTICE of Appearance by Shelese M. Woods on behalf of Defendants TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Woods, Shelese) (Entered: 11/20/2012)
19 RETURN of Service by CMRRR, filed by All Plaintiffs. KATHLEEN SEBELIUS served on 11/05/2012. (Attachments: # 1 Exhibit A − Affidavit of Service)(Cork,

Case: 4:12-cv-134 As of: 11/11/2017 08:40 PM EST 7 of 11

11/20/2012 11/20/2012 11/20/2012 11/21/2012 11/21/2012 11/26/2012 11/26/2012
11/27/2012 11/27/2012 11/27/2012 11/28/2012

Michael) Modified on 11/21/2012 to reflect correct date of service (JLM). (Entered: 11/20/2012)
20 RETURN of Service by CMRRR, filed by All Plaintiffs. HILDA L. SOLIS served on 11/5/2012. (Attachments: # 1 Exhibit A − Affidavit of Service)(Cork, Michael) Modified on 11/21/2012 to reflect correct date of service (JLM). (Entered: 11/20/2012)
21 RETURN of Service by CMRRR, filed by All Plaintiffs. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 11/5/2012. (Attachments: # 1 Exhibit A − Affidavit of Service)(Cork, Michael) Modified on 11/21/2012 to reflect correct date of service (JLM). (Entered: 11/20/2012)
22 RETURN of Service by CMRRR, filed by All Plaintiffs. UNITED STATES DEPARTMENT OF THE TREASURY served on 11/7/2012. (Attachments: # 1 Exhibit A − Affidavit of Service)(Cork, Michael) Modified on 11/21/2012 to reflect accurate date of service (JLM). (Entered: 11/20/2012)
23 MOTION for Attorney(s) Bryan H. Beauman to Appear pro hac vice. Filing fee $ 30, receipt number 0756−2508876., filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Attachments: # 1 Text of Proposed Order)(Cork, Michael) (Entered: 11/21/2012)
24 MOTION for Attorney(s) Matthew S. Bowman to Appear pro hac vice. Filing fee $ 30, receipt number 0756−2508896., filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Attachments: # 1 Text of Proposed Order)(Cork, Michael) (Entered: 11/21/2012)
25 ORDER granting 23 Motion to Appear pro hac vice. Attorney Bryan H. Beauman for JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., and GROTE INDUSTRIES, LLC added. Signed by Judge Sarah Evans Barker on 11/26/2012. (LBT) (Entered: 11/26/2012)
26 ORDER granting 24 Motion to Appear pro hac vice. Attorney Matthew S. Bowman for JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC. and GROTE INDUSTRIES, LLC added. Mr. Bowman shall file an Appearance providing the Cour with his address, phone number and email address. Signed by Judge Sarah Evans Barker on 11/26/2012. (LBT) (Entered: 11/26/2012)
27 ORDER granting 8 Motion for Leave to File Brief in Excess of Page Limit. The Clerk is directed to docket the plaintiffs' Brief in Support of 7 Motion for Preliminary Injunction, attached to the motion for leave as Exhibit 1 (Dkt. 8−1). Signed by Magistrate Judge Debra McVicker Lynch on 11/27/2012. (LBT) Modified on 11/28/2012 (LBT). (Entered: 11/28/2012)
28 BRIEF/MEMORANDUM in Support re 7 MOTION for Preliminary Injunction, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. **DOCKETED PER NO. 27** (LBT) (Entered: 11/28/2012)
29 ORDER granting 17 Motion for Leave to File Oversized Brief. 15 Defendants' Brief in Opposition to 7 MOTION for Preliminary Injunction and in Support of 14 MOTION to Dismiss is hereby accepted by the Court and deemed filed as of the date it was tendered, 11/19/2012. Signed by Magistrate Judge Debra McVicker Lynch on 11/27/2012. (LBT) Modified on 11/28/2012 (LBT). (Entered: 11/28/2012)
30 MOTION for Extension of Time to 12/6/12 to file reply to 7 MOTION for Preliminary Injunction and to file reply with response to 14 Defendants' Motion to Dismiss, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC

Case: 4:12-cv-134 As of: 11/11/2017 08:40 PM EST 8 of 11

11/29/2012 12/06/2012
12/11/2012 12/11/2012 12/13/2012 12/17/2012
12/19/2012 12/20/2012
12/21/2012
12/27/2012 12/31/2012

GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Attachments: # 1 Text of Proposed Order)(Cork, Michael) Modified on 11/29/2012 (LBT). (Entered: 11/28/2012)
31 ORDER granting 30 Motion for Extension of Time 12/6/2012 to File Reply to 7 MOTION for Preliminary Injunction, and to file the reply in conjunction with the Response to 14 MOTION to Dismiss. Signed by Magistrate Judge Debra McVicker Lynch on 11/29/2012. (LBT) (Entered: 11/29/2012)
32 REPLY in Support of Motion re 7 MOTION for Preliminary Injunction and Response in Opposition to 14 Defendants' Motion to Dismiss, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Cork, Michael) Modified on 12/6/2012 (PGS). Modified on 12/7/2012 (LBT). (Entered: 12/06/2012)
33 RETURN of Service by CMRRR, filed by All Plaintiffs. TIMOTHY GEITHNER served on 11/05/2012. (Attachments: # 1 Exhibit A − Summons and Affidavit of Service)(Cork, Michael) Modified on 12/12/2012 to reflect accurate date of service (JLM). (Entered: 12/11/2012)
34 RETURN of Service by CMRRR, filed by All Plaintiffs. UNITED STATES DEPARTMENT OF LABOR served on 11/05/2012. (Attachments: # 1 Exhibit A − Summons and Affidavit of Service)(Cork, Michael) Modified on 12/12/2012 to reflect accurate date of service (JLM). (Entered: 12/11/2012)
35 REPLY in Support of Motion re 14 MOTION to Dismiss , filed by Defendants TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Pruski, Jacek) (Entered: 12/13/2012)
36 NOTICE of Supplemental Authority, filed by Defendants TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, re 14 MOTION to Dismiss , 7 MOTION for Preliminary Injunction . (Attachments: # 1 Exhibit A − Korte v. Sebelius) (Pruski, Jacek) (Entered: 12/17/2012)
37 RESPONSE to Defendants' Citation of Supplemental Authority, re 36 Notice (Other), filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Cork, Michael) (Entered: 12/19/2012)
38 NOTICE of Supplemental Authority, filed by Defendants TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, re 14 MOTION to Dismiss , 7 MOTION for Preliminary Injunction . (Attachments: # 1 Exhibit Hobby Lobby v. Sebelius (10th Cir.)) (Pruski, Jacek) (Entered: 12/20/2012)
39 NOTICE of Supplemental Authority, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC, re 7 MOTION for Preliminary Injunction . (Attachments: # 1 Exhibit American Pulverizer v. Sebelius) (Wilkins, Michael) (Entered: 12/21/2012)
40 ORDER denying 7 Plaintiffs' Motion for Preliminary Injunction. Signed by Judge Sarah Evans Barker on 12/27/2012. (PGS) (Entered: 12/27/2012)
41 MOTION for Reconsideration re 40 Order on Motion for Preliminary Injunction of Order Denying Plaintiffs Injunctive Relief, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Attachments: # 1 Exhibit 1 −

Case: 4:12-cv-134 As of: 11/11/2017 08:40 PM EST 9 of 11

12/31/2012
01/03/2013
01/03/2013 01/09/2013
01/09/2013 01/09/2013 01/09/2013 01/23/2013 01/23/2013 04/01/2013 04/01/2013 09/17/2013
12/31/2013

Korte Order, # 2 Text of Proposed Order)(Cork, Michael) (Entered: 12/31/2012)
42 RESPONSE in Opposition re 41 MOTION for Reconsideration re 40 Order on Motion for Preliminary Injunction of Order Denying Plaintiffs Injunctive Relief , filed by Defendants TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Pruski, Jacek) (Entered: 12/31/2012)
43 NOTICE of Supplemental Authority, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC, re 41 MOTION for Reconsideration re 40 Order on Motion for Preliminary Injunction of Order Denying Plaintiffs Injunctive Relief. (Attachments: # 1 Exhibit Order Granting Preliminary Injunction) (Wilkins, Michael) (Entered: 01/03/2013)
44 ORDER denying 41 Plaintiffs' Motion for Reconsideration. Signed by Judge Sarah Evans Barker on 1/3/2013. (PGS) (Entered: 01/03/2013)
45 NOTICE OF APPEAL as to 40 Order on Motion for Preliminary Injunction, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. Filing fee $ 455, receipt number 0756−2548832. (Wilkins, Michael) (Entered: 01/09/2013)
46 SEVENTH CIRCUIT APPEAL INFORMATION SHEET re 45 Notice of Appeal − Instructions for Attorneys − Parties' Short Record, Instructions, and Designation of Record information attached. (JLM) (Entered: 01/09/2013)
47 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 45 Notice of Appeal. − for Court of Appeals Use Only. (JLM) (Entered: 01/09/2013)
48 USCA Case Number 13−1077 for 45 Notice of Appeal filed by MICHAEL R. GROTE, WALTER F. GROTE, JR., W. FREDERICK GROTE, III, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, LLC, GROTE INDUSTRIES, INC., JOHN R. GROTE. (JLM) (Entered: 01/10/2013)
49 DESIGNATION of Record on Appeal by All Plaintiffs re 45 Notice of Appeal (Attachments: # 1 Exhibit Docket Sheet)(Cork, Michael) (Entered: 01/23/2013)
50 SEVENTH CIRCUIT TRANSCRIPT INFORMATION SHEET by All Plaintiffs re 45 Notice of Appeal (Cork, Michael) (Entered: 01/23/2013)
51 Certified and Transmitted Record on Appeal to US Court of Appeals via email re 45 Notice of Appeal (Attachments: # 1 Notice to Transmit Record on Appeal)(JLM) (Entered: 04/01/2013)
52 Appeal Remark re 45 Notice of Appeal : Long record received and docketed by USCA (JLM) (Entered: 04/01/2013)
53 ORDER − ADMINISTRATIVELY CLOSING CASE; For purposes of docket management, this cause shall be administratively closed on the Court's docket without prejudice to the right of any party to move to reopen it within sixty (60) days after the Seventh Circuit Court of Appeals rules on the pending appeal. Signed by Judge Sarah Evans Barker on 9/17/2013.(CKM) **Copy sent to USCA 9/20/2013 re 13−1077.** Modified on 9/20/2013 (JLM). (Entered: 09/17/2013)
54 MANDATE of USCA as to 45 Notice of Appeal filed by MICHAEL R. GROTE, WALTER F. GROTE, JR., W. FREDERICK GROTE, III, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, LLC, GROTE INDUSTRIES, INC., JOHN R. GROTE (USCA #13−1077). The judgment of the district court is REVERSED, with costs, and REMANDED with instructions to enter preliminary injunctions barring enforcement of the contraception mandate against the plaintiffs. The above is in accordance with the decision of this court entered on this date. (LBT) (Entered: 12/31/2013)

Case: 4:12-cv-134 As of: 11/11/2017 08:40 PM EST 10 of 11

01/02/2014
01/24/2014 01/24/2014 02/20/2014
08/12/2014 08/29/2014 09/02/2014 09/24/2014
09/26/2014 10/27/2014 04/30/2015 06/09/2015
06/09/2015

55 ENTRY REGARDING LOCAL RULE 16−2 STATEMENTS − The Court received the Mandate issued by the U.S. Court of Appeals on 12/31/2013. Accordingly, each party shall, pursuant to Local Rule 16−2, "file a statement of position as to what action the court should take in the case." These statements shall be filed on or before 1/24/2014. Signed by Judge Sarah Evans Barker on 1/2/2014.(LBT) (Entered: 01/02/2014)
56 Statement LR 16−2 Position Statement by All Plaintiffs. (Wilkins, Michael) (Entered: 01/24/2014)
57 Local Rule 16−2 Position Statement 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 THE TREASURY. (JLM) (Entered: 01/24/2014)
58 ORDER GRANTING PRELIMINARY INJUNCTION − Other proceedings in this case are hereby STAYED pending the outcome of the Hobby Lobby and Conestoga cases currently pending before the United States Supreme Court. For purposes of docket management, this case is administratively closed without prejudice to the right of any party to move to reopen it within 60 days after the United States Supreme Court rules. (See Order for particulars.)Signed by Judge Sarah Evans Barker on 2/20/2014.(JLM) (Entered: 02/21/2014)
59 ORDER of USCA as to 45 Notice of Appeal filed by MICHAEL R. GROTE, WALTER F. GROTE, JR., W. FREDERICK GROTE, III, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, LLC, GROTE INDUSTRIES, INC., JOHN R. GROTE (USCA #13−1077) − The appellants in appeal #13−1077 are awarded $845.16 in costs. (JLM) (Entered: 08/12/2014)
60 MOTION to Reopen Case, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Wilkins, Michael) (Entered: 08/29/2014)
61 Submission of Proposed Order , re 60 MOTION to Reopen Case, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Wilkins, Michael) (Entered: 09/02/2014)
62 NOTICE of Non−Opposition to 60 Reopening Case, filed by Defendants TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA L. SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, re 60 MOTION to Reopen Case. (Pruski, Jacek) Modified on 9/25/2014 (JLM). (Entered: 09/24/2014)
63 ORDER granting 60 Motion to Reopen Case. The Court directs the clerk to reopen this case. The parties are given 30 days to submit a stipulated injunction and a final judgment form. Signed by Judge Sarah Evans Barker on 9/26/2014. (JLM) (Entered: 09/26/2014)
65 STATUS REPORT Joint by All Plaintiffs. (Wilkins, Michael) (Entered: 10/27/2014)
66 CLOSED INJUNCTION AND JUDGMENT in favor of Plaintiffs and against Defendants. See Judgment for details. Signed by Judge Sarah Evans Barker on 4/30/2015.(LBT) (Entered: 05/01/2015)
67 Unopposed MOTION for Extension of Time to July 29, 2015 for fees and costs petition, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Attachments: # 1 Text of Proposed Order)(Bowman, Matthew) (Entered: 06/09/2015)
68 NOTICE of Appearance by Julie Shana Saltman on behalf of Defendants SYLVIA M. BURWELL, TIMOTHY GEITHNER, HILDA L. SOLIS, UNITED STATES

Case: 4:12-cv-134 As of: 11/11/2017 08:40 PM EST 11 of 11

06/10/2015 07/23/2015
07/24/2015 09/28/2015

DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Saltman, Julie) (Entered: 06/09/2015)
69 ORDER granting 67 Plaintiffs' unopposed Motion to Extend Deadline. The deadline for Plaintiffs' to file a motion for attorney fees and costs is extended to and including 7/29/2015. Signed by Magistrate Judge Debra McVicker Lynch on 6/10/2015. (JLM) (Entered: 06/11/2015)
70 Unopposed MOTION for Extension of Time to September 28, 2015 , filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC. (Attachments: # 1 Text of Proposed Order Proposed Order Extending Deadline)(Bowman, Matthew) (Entered: 07/23/2015)
71 ORDER granting 70 Motion for Extension of Time to 9/28/2015 to file motion for attorneys' fees and costs. The parties should expect no further extensions of time absent compelling circumstances. Signed by Magistrate Judge Debra McVicker Lynch on 7/24/2015. (MAG) (Entered: 07/24/2015)
72 NOTICE of settlement of attorneys fees and costs matter, filed by Plaintiffs JOHN R. GROTE, MICHAEL R. GROTE, W. FREDERICK GROTE, III, WALTER F. GROTE, JR, WILLIAM D. GROTE, III, WILLIAM DOMINIC GROTE, IV, GROTE INDUSTRIES, INC., GROTE INDUSTRIES, LLC (Bowman, Matthew) (Entered: 09/28/2015)

Case #: 4:12−cv−00134−SEB−DML

 
 General Docket Seventh Circuit Court of Appeals

Court of Appeals Docket #: 13-1077 Nature of Suit: 2440 Other Civil Rights William Grote, III, et al v. Kathleen Sebelius, et al Appeal From: Southern District of Indiana, New Albany Division Fee Status: Paid

Case Type Information: 1) civil 2) us 3) -

Originating Court Information: District: 0756-4 : 4:12-cv-00134-SEB-DML Trial Judge: Sarah Evans Barker, District Court Judge Date Filed: 10/29/2012 Date Order/Judgment: 12/27/2012

Date NOA Filed: 01/09/2013

Prior Cases: None

Current Cases: Consolidated

Lead 12-3841

Member 13-1077

Start

End

01/30/2013

Docketed: 01/09/2013

WILLIAM D. GROTE, III Plaintiff - Appellant
WILLIAM DOMINIC GROTE, IV Plaintiff - Appellant

Michael A. Wilkins, Attorney Direct: 317-571-3601 [COR LD NTC Retained] BROYLES, KIGHT & RICAFORT Suite 100 8250 Haverstick Road Indianapolis, IN 46240
Bryan Beauman, Attorney Direct: 859-255-8581 [NTC Retained] STURGILL TURNER BARKER & MOLONEY, PLLC Suite 1400 333 W. Vine Street Lexington, KY 40507
Matthew Bowman, Attorney Direct: 202-393-8690 [NTC Retained] ALLIANCE DEFENDING FREEDOM Suite 509 801 G Street N.W. Washington, DC 20001-0000
Michael J. Cork, Attorney Direct: 317-464-1594 [NTC Retained] BAMBERGER, FOREMAN, OSWALD & HAHN Suite 1225 201 N. Illinois Street
Indianapolis, IN 46204-4219
Michael A. Wilkins, Attorney Direct: 317-571-3601 [COR LD NTC Retained] (see above)

Bryan Beauman, Attorney Direct: 859-255-8581 [NTC Retained] (see above)

Matthew Bowman, Attorney Direct: 202-393-8690 [NTC Retained] (see above)

Michael J. Cork, Attorney Direct: 317-464-1594 [NTC Retained] (see above)

WALTER F. GROTE Plaintiff - Appellant

Michael A. Wilkins, Attorney Direct: 317-571-3601 [COR LD NTC Retained] (see above)

Bryan Beauman, Attorney Direct: 859-255-8581 [NTC Retained] (see above)

Matthew Bowman, Attorney Direct: 202-393-8690 [NTC Retained] (see above)

Michael J. Cork, Attorney Direct: 317-464-1594 [NTC Retained] (see above)

GROTE INDUSTRIES, LLC, an Indiana limited liability company Plaintiff - Appellant

Michael A. Wilkins, Attorney Direct: 317-571-3601 [COR LD NTC Retained] (see above)

Bryan Beauman, Attorney Direct: 859-255-8581 [NTC Retained] (see above)

Matthew Bowman, Attorney Direct: 202-393-8690 [NTC Retained] (see above)

Michael J. Cork, Attorney Direct: 317-464-1594 [NTC Retained]

(see above)

GROTE INDUSTRIES, INCORPORATED, an Indiana corporation Plaintiff - Appellant

Michael A. Wilkins, Attorney Direct: 317-571-3601 [COR LD NTC Retained] (see above)

Bryan Beauman, Attorney Direct: 859-255-8581 [NTC Retained] (see above)

Matthew Bowman, Attorney Direct: 202-393-8690

Direct: 202-393-8690 [NTC Retained] (see above)
Michael J. Cork, Attorney Direct: 317-464-1594 [NTC Retained] (see above)
v.

KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services
Defendant - Appellee

Alisa B. Klein, Attorney [COR LD NTC Government Federal] DEPARTMENT OF JUSTICE Civil Division, Appellate Staff 950 Pennsylvania Avenue N.W. Washington, DC 20530-0000

SETH D. HARRIS, in his official capacity as Acting Secretary of the Alisa B. Klein, Attorney

United States Department of Labor

[COR LD NTC Government Federal]

Defendant - Appellee

(see above)

HILDA L. SOLIS, in her official capacity as Secretary of the United States Department of Labor Terminated: 03/18/2013
Defendant - Appellee

TIMOTHY F. GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury Terminated: 03/18/2013
Defendant - Appellee

JACOB J. LEW, in his official capacity as Secretary of the United States Department of the Treasury
Defendant - Appellee

Alisa B. Klein, Attorney [COR LD NTC Government Federal] (see above)

UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES
Defendant - Appellee

Alisa B. Klein, Attorney [COR LD NTC Government Federal] (see above)

UNITED STATES DEPARTMENT OF LABOR Defendant - Appellee

Alisa B. Klein, Attorney [COR LD NTC Government Federal] (see above)

UNITED STATES DEPARTMENT OF THE TREASURY Defendant - Appellee
------------------------------

Alisa B. Klein, Attorney [COR LD NTC Government Federal] (see above)

ARCHDIOCESE OF INDIANAPOLIS Amicus Curiae
DIOCESE OF SPRINGFIELD Amicus Curiae
INDIANA CATHOLIC CONFERENCE Amicus Curiae
WISCONSIN FAMILY ACTION

Noel J. Francisco, Attorney Direct: 202-879-3939 [COR LD NTC Retained] JONES DAY 51 Louisiana Avenue N.W. Washington, DC 20001-2113
Noel J. Francisco, Attorney Direct: 202-879-3939 [COR LD NTC Retained] (see above)
Noel J. Francisco, Attorney Direct: 202-879-3939 [COR LD NTC Retained] (see above)
Angela M. Engelsen, Attorney

WISCONSIN FAMILY ACTION Amicus Curiae
PHYSICIANS FOR REPRODUCTIVE CHOICE AND HEALTH Amicus Curiae
AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS
Amicus Curiae
NATIONAL HEALTH LAW PROGRAM Amicus Curiae
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND
Amicus Curiae
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE
Amicus Curiae

Angela M. Engelsen, Attorney Direct: 269-350-6206 [COR LD NTC Retained] 128 Wakewa Avenue South Bend, IN 46617
Bruce Harvey Schneider, Attorney Direct: 212-806-5636 [COR LD NTC Retained] STROOCK, STROOCK & LAVAN LLP 180 Maiden Lane New York, NY 10038-4982
Bruce Harvey Schneider, Attorney Direct: 212-806-5636 [COR LD NTC Retained] (see above)
Martha Jane Perkins, Attorney Direct: 919-968-6308 [COR LD NTC Retained] NATIONAL HEALTH LAW PROGRAM Suite G-7 101 E. Weaver Street Carrboro, NC 27510
Martha Jane Perkins, Attorney Direct: 919-968-6308 [COR LD NTC Retained] (see above)
Gregory M. Lipper, Attorney Direct: 202-466-3234 [COR LD NTC Retained] AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE Ste 850, East Tower 1301 K Street N.W. Washington, DC 20005-0000

WILLIAM D. GROTE, III, et al., Plaintiffs - Appellants
v.
KATHLEEN SEBELIUS, et al., Defendants - Appellees

01/09/2013

1

48 pg, 355.36 KB

U.S. civil case docketed. Fee paid. Transcript information sheet due by 01/23/2013. Docketing Statement due for Appellants Walter F. Grote, William D. Grote III, William Dominic Grote IV, Grote Industries, Incorporated and Grote Industries, LLC by 01/16/2013. Appellant's brief due on or before 02/19/2013 for Walter F. Grote, William D. Grote III, William Dominic Grote IV, Grote Industries, Incorporated and Grote Industries, LLC. [1] [6455493] [13-1077] (AD)

01/09/2013

THIS CAUSE CONSISTS OF MORE THAN 5 PARTIES FOR EITHER SIDE. The following are those parties to this cause as reflected on the District Court docket, yet are not reflected on the Appellate docket/caption for administrative purposes: APPELLANTS: Michael R. Grote, W. Frederick Grote, III and John R. Grote. [6455495-2] [6455495] [13-1077] (AD)

01/11/2013

2

2 pg, 46.32 KB

Attorney Jacek Pruski for TREA, LABR, HHS, Hilda L. Solis, Kathleen Sebelius and Timothy F. Geithner in 13-1077 terminated and added Attorney(s) Alisa B. Klein for party(s) Appellee Timothy F. Geithner Appellee LABR Appellee HHS Appellee TREA Appellee Hilda L. Solis Appellee Kathleen Sebelius, in case 13-1077 per disclosure statement. Disclosure statement filed by Attorney(s) Alisa B. Klein for party(s) Appellee Timothy F. Geithner Appellee LABR Appellee HHS Appellee TREA Appellee Hilda L. Solis Appellee Kathleen Sebelius, in case 13-1077. [2] [6455890] [13-1077]--[Edited 01/11/2013 by SM to reflect terminated and added attorney.] (Klein, Alisa)

01/11/2013

3

2 pg, 46.32 KB

Disclosure Statement filed by Attorney Mark B. Stern for Appellees Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, HHS, LABR and TREA. [3] [6455891] [13-1077] (Klein, Alisa)

01/11/2013

4

98 pg, 1.8 MB

Motion filed by Appellants Walter F. Grote, William D. Grote, III, William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC Injunction Pending Appeal. [4] [6455898] [13-1077] (Wilkins, Michael)

01/11/2013

5

1 pg, 171.24 KB

ORDER: Filed clerk's notice to Appellees Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, HHS, LABR and TREA to file a response to Plaintiffs-Appellants' Motion for Injunction Pending Appeal. The governments response is due by Thursday, January 17, 2013. [5] JRN [6456264] [13-1077] (JAD)

01/16/2013

6

3 pg, 43.44 KB

Docketing statement filed by Appellants Walter F. Grote, William D. Grote, III, William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC. Prior or Related proceedings: No. [6] [6457066] [13-1077] (Wilkins, Michael)

01/17/2013

7

Filed Response in Opposition by Appellees Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, HHS,

28 pg, 138.46 KB LABR and TREA to Plaintiffs-Appellants' Motion for Injunction Pending Appeal. [7][6457514] [13-1077]

(Klein, Alisa)

01/23/2013

8

1 pg, 47.57 KB

Filed Seventh Circuit Transcript Information Sheet by Appellants Walter F. Grote, William D. Grote, III, William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC. [8] [6458695] [131077] (AM)

01/24/2013

9

13 pg, 77.39 KB

Filed Reply by Appellants Walter F. Grote, William D. Grote, III, William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC Attorney Michael A. WIlkins to Motion for Injunction Pending Appeal. [9][6459028] [13-1077] (Wilkins, Michael)

01/30/2013

10

19 pg, 223.89 KB

Order: The motion for an injunction pending appeal is GRANTED. The defendants are enjoined pending resolution of this appeal from enforcing the contraception mandate against the Grote Family and Grote Industries. This case is consolidated with Korte. Oral argument will be scheduled by separate order when briefing has been completed. (See order for further details) Circuit Judge Joel M. Flaum, Circuit Judge Ilana Diamond Rovner, dissenting, Circuit Judge Diane S. Sykes. *This order is being released in typescript. It will be published; a printed version will follow. [4] JR [10] [6460731] [13-1077] (AM)

02/01/2013

11

Amicus brief filed by Amicus Curiae Liberty, Life, and Law Foundation by consent. Paper copies due on

45 pg, 242.68 KB 02/08/2013. Electronically Transmitted. [11] [6461271] [12-3841] (BS)

02/04/2013

12

2 pg, 74.31 KB

Appearance form filed by Attorney Stephen Robert Clark for Amicus Curiae Liberty, Life, and Law Foundation in 12-3841. Additional Parties: Breast Cancer Prevention Institute, Bioethics Defense Fund, and Life Legal Defense Foundation. [12] [6461486] [12-3841, 13-1077]--[Edited 02/04/2013 by FP to reflect that atty. Clark is added to the docket.] (Clark, Stephen)

02/04/2013

13

Submitted brief by Steven W. Fitschen for amicus DAVID M. WAGNER, BRADLEY P. JACOB, CHARLES

40 pg, 130.24 KB E. RICE, COMMON GOOD FOUNDATION, COMMON GOOD ALLIANCE, AND CATHOLIC ONLINE,

LLC. Consent from all parties contained within brief. [13] [6461543] [12-3841, 13-1077] (Fitschen, Steven)

02/04/2013

14

Amicus brief filed by Amici Curiae Catholic Online, Common Good Alliance, Common Good Foundation,

40 pg, 174.21 KB Charles E. Rice, Bradley P. Jacob and David M. Wagner by consent. Paper copies due on 02/11/2013.

Electronically Transmitted. [14] [6461607] [12-3841] (BS)

02/04/2013

15

Amicus brief filed by Amici Curiae Drury Southwest, Inc., Drury Development Corporation and Association

43 pg, 298.28 KB of American Physicians and Surgeons, Incorporated, by consent. Paper copies due on 02/11/2013.

Electronically Transmitted. [15] [6461627] [12-3841] (AB)

02/04/2013

THIS CAUSE CONSISTS OF MORE THAN 5 PARTIES FOR EITHER SIDE. The following are amicus parties to this cause, yet are not reflected on the Appellate docket/caption for administrative purposes: DRURY HOTELS COMPANY, LLC; AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS & GYNECOLOGISTS; CHRISTIAN MEDICAL ASSOCIATION; CATHOLIC MEDICAL ASSOCIATION; NATIONAL CATHOLIC BIOETHICS CENTER; PHYSICIANS FOR LIFE; NATIONAL ASSOCIATION OF PRO-LIFE NURSES. [6461631-2] [6461631] [12-3841]--[Edited 02/04/2013 by AB] (AB)

02/04/2013

16

4 pg, 18.26 KB

Disclosure Statement filed by Attorney Steven W. Fitschen for Amici Curiae Catholic Online, Common Good Alliance, Common Good Foundation, Bradley P. Jacob, Charles E. Rice and David M. Wagner in 12-3841. [16] [6461719] [12-3841, 13-1077] (Fitschen, Steven)

02/04/2013

17

Submitted brief by Stephen Robert Clark for amicus Life Legal Defense Foundation, Bioethics Defense

40 pg, 316.64 KB Fund, Breast Cancer Prevention Institute. Leave granted by court order. [17] [6461728] [12-3841, 13-

1077] (Clark, Stephen)

02/04/2013

18

3 pg, 15.1 KB

Amended Disclosure Statement filed by Attorney Steven W. Fitschen for Amici Curiae Catholic Online, Common Good Alliance, Common Good Foundation, Bradley P. Jacob, Charles E. Rice and David M. Wagner in 12-3841. [18] [6461729] [12-3841, 13-1077] (Fitschen, Steven)

02/04/2013

19

Amicus brief filed by Amici Curiae Life Legal Defense Foundation, Bioethics Defense Fund and Breast

40 pg, 319.93 KB Cancer Prevention Institute by consent. Paper copies due on 02/12/2013 Electronically Transmitted. [19]

[6461806] [12-3841] (RT)

02/04/2013

20

Amicus brief filed by Amicus Curiae Catholic Vote by consent. Paper copies due on 02/12/2013

39 pg, 366.19 KB Electronically Transmitted. [20] [6461813] [12-3841] (RT)

02/04/2013

21

Amicus brief filed by Amicus Curiae United States Justice Foundation by consent. Paper copies due on

28 pg, 210.06 KB 02/12/2013 Electronically Transmitted. [21] [6461818] [12-3841] (RT)

02/04/2013

22

55 pg, 430.78 KB

Amicus brief filed by Amicus Curiae Gospel Rescue Missions, Prison Fellowship Ministries, Association of Christian Schools International, National Association of Evangelicals, Ethics & Religious Liberty Commission of the Southern Baptist Convention, Patrick Henry College, Institutional Religious Freedom Alliance and Christian Legal Society by consent. Paper copies due on 02/12/2013 Electronically Transmitted. [22] [6461825] [12-3841] (RT)

02/05/2013

23

3 pg, 17.94 KB

Disclosure Statement filed by Attorney John P. Tuskey for Amici Curiae Catholic Online, Common Good Alliance, Common Good Foundation, Bradley P. Jacob, Charles E. Rice and David M. Wagner in 12-3841. [23] [6461856] [12-3841, 13-1077] (Fitschen, Steven)

02/12/2013

24

Filed slip opinion of the court's January 30, 2013 order granting the motion for an injunction pending

36 pg, 204.87 KB appeal. Joel M. Flaum, Circuit Judge; Ilana Diamond Rovner, Circuit Judge, dissenting and Diane S.

Sykes, Circuit Judge. [24] [6463559] [13-1077] (AD)

02/19/2013

25

Submitted appellant brief by Michael A. WIlkins for Appellants Walter F. Grote, William D. Grote, III,

101 pg, 315.75 KB William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC in 13-1077. [25]

[6465303] [13-1077, 12-3841] (Wilkins, Michael)

02/19/2013

26
101 pg, 325.87 KB

Appellant's brief filed by Appellants Walter F. Grote, William D. Grote, III, William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC. Electronically Transmitted. Paper copies due on 02/27/2013. Appellee's brief due on or before 03/21/2013 for Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health & Human Services, United States Department of Labor and United States Department of the Treasury. [26] [6465329] [13-1077] (AB)

02/21/2013

27

4 pg, 579.81 KB

Disclosure Statement filed by Attorney Michael Wilkins; Michael Cork; Bryan Beauman; Matthew Bowman for Appellants Walter F. Grote, William D. Grote, III, William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC in 13-1077. [27] [6465831] [13-1077, 12-3841] [27] [6465831] [131077, 12-3841]--[Edited 02/21/2013 by CD to reflect addition of counsel.] (Wilkins, Michael)

02/26/2013

28

4 pg, 150.6 KB

Disclosure Statement filed by Attorney Noel J. Francisco for Roman Catholic Archdiocese of Indianapolis, Inc.; Indiana Catholic Conference, Inc.; and the Roman Catholic Diocese of Springfield in Illinois (Amici Curiae). [28] [6466948] [13-1077, 12-3841] (Francisco, Noel)

02/26/2013

29

Submitted brief by Noel J. Francisco for amicus Roman Catholic Archdiocese of Indianapolis, Inc.; Indiana

42 pg, 278.52 KB Catholic Conference, Inc.; and the Roman Catholic Diocese of Springfield in Illinois (Amici Curiae).

Consent from all parties contained within brief. [29] [6466955] [13-1077, 12-3841] (Francisco, Noel)

02/26/2013

30

Amicus brief filed by Amici Curiae Indiana Catholic Conference, Diocese of Springfield and Archdiocese of

42 pg, 293.96 KB Indianapolis by consent. Paper copies due on 03/05/2013 Electronically Transmitted. [30] [6467004] [13-

1077] (RS)

02/26/2013

31

Submitted brief by Angela M. Engelsen for amicus Wisconsin Family Action. Consent from all parties

40 pg, 350.71 KB contained within brief. [31] [6467028] [13-1077, 12-3841] (Engelsen, Angela)

02/26/2013

32

Submitted brief by Kimberlee Wood Colby for Amicus Curiae Gospel Rescue Missions in 12-3841.

44 pg, 244.17 KB Consent from all parties contained within brief. [32] [6467120] [13-1077, 12-3841] (Colby, Kimberlee)

02/26/2013

33

Amicus brief filed by Amicus Curiae Gospel Rescue Missions by consent. Paper copies due on

44 pg, 300.52 KB 03/06/2013 Electronically Transmitted. [33] [6467203] [13-1077] (RT)

02/26/2013

34

2 pg, 94.06 KB

Brief deficiency letter sent to Amicus Curiae Wisconsin Family Action in 13-1077. [34] [6467256] [13-1077, 12-3841] Date updated: 02/27/2013 (SK)

02/26/2013

37

Amicus brief filed by Amicus Curiae Wisconsin Family Action by consent. Paper copies due on 03/06/2013

44 pg, 406.82 KB Electronically Transmitted. [37] [6467354] [13-1077] (SK)

02/27/2013

35

4 pg, 126.14 KB

Disclosure Statement filed by Attorneys Angela M. Engelsen and Scott W. Gaylord for Wisconsin Family Action. [35] [6467315] [13-1077, 12-3841]--[Edited 02/27/2013 by ER - to reflect attorney Scott W. Gaylord] (Engelsen, Angela)

02/27/2013

36

Re-Submitted brief by Angela M. Engelsen for Amicus Curiae Wisconsin Family Action in 13-1077.

44 pg, 381.51 KB Consent from all parties contained within brief. [36] [6467316] [13-1077, 12-3841] (Engelsen, Angela)

02/27/2013

38

2 pg, 91.43 KB

Disclosure Statement filed by Attorney Angela M. Engelsen for Amicus Curiae Wisconsin Family Action. [38] [6467361] [13-1077] (SK)

03/01/2013

39

2 pg, 17.1 KB

Brief deficiency letter sent to Appellees Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, HHS, LABR and TREA. DEFICIENCY LETTER ENTERED IN ERROR. [39] [6468564] [12-3841] Date updated: 03/04/2013--[Edited 03/04/2013 by BS] (SP)

03/07/2013

40

Submitted brief by Martha J. Perkins for amicus National Health Law Program. Consent from all parties

33 pg, 621.72 KB contained within brief. [40] [6469666] [12-3841, 13-1077] (Perkins, Martha)

03/07/2013

41

Amicus brief filed by Amicus Curiae National Health Law Program by consent. Paper copies due on

33 pg, 672.43 KB 03/15/2013 Electronically Transmitted. [41] [6469684] [12-3841] (RS)

03/08/2013

42

6 pg, 463.8 KB

Disclosure Statement filed by Attorney Lorie Chaiten Richard Muniz Thomas E. Kennedy III Brigitte Amiri Daniel Mach for American Civil Liberties Union American Civil Liberties Union of Illinois Anti-Defamation League Catholics for Choice Hadassah, Womens Zionist Organization of America, Inc. Interfaith Alliance Foundation. Additional Parties: National Coalition of American Nuns National Council of Jewish Women Protestants for the Common Good Religious Coalition for Reproductive Choice Religious Institute Unitarian Universalist Association Unitarian Universalist Womens Federation. [42] [6469776] [12-3841, 13-1077] (Chaiten, Lorie)

03/08/2013

43

40 pg, 239.34 KB

Submitted brief by Lorie Chaiten for amicus American Civil Liberties Union American Civil Liberties Union of Illinois Anti-Defamation League Catholics for Choice Hadassah, the Womens Zionist Organization of America, Inc. Interfaith Alliance Foundation et al.. Consent from all parties contained within brief. [43] [6469779] [12-3841, 13-1077] (Chaiten, Lorie)

03/08/2013

44

47 pg, 302.43 KB

Submitted brief by Lisa S. Blatt for amicus Center for Reproductive Rights, Am. Public Health Ass'n, Guttmacher Inst., Nat'l Family Planning & Reproductive Health Ass'n, Nat'l Latina Inst. for Reproductive Health, Nat'l Women's Health Network, Prof. R. Alta Charo, and Reproductive Health Techs Proj. Consent from all parties contained within brief. [44] [6469880] [12-3841, 13-1077] (Blatt, Lisa)

03/08/2013

45

5 pg, 150.5 KB

Disclosure Statement filed by Attorney Lisa S. Blatt, Robert J. Katerberg, Andrew S. Macurdy, Julianna S. Gonen for Center for Reproductive Rights, American Public Health Association, Guttmacher Institute, National Family Planning & Reproductive Health Association, National Latina Institute for Reproductive Health. Additional Parties: National Women's Health Network, Professor R. Alta Charo, and Reproductive Health Technologies Project. [45] [6469892] [12-3841, 13-1077] (Blatt, Lisa)

03/08/2013

46

Amicus brief filed by Amici Curiae Center for Reproductive Rights and American Public Health Association

47 pg, 303.17 KB by consent. Paper copies due on 03/15/2013 Electronically Transmitted. [46] [6469901] [12-3841] (RS)

03/08/2013

THIS CAUSE CONSISTS OF MORE THAN 5 AMICI: The following are those parties to this cause : GUTTMACHER INSTITUTE, NATIONAL FAMILY PLANNING & REPRODUCTIVE HEALTH ASSOCIATION, NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH, NATIONAL WOMEN'S HEALTH NETWORK, PROFESSOR R. ALTA CHARO, REPRODUCTIVE HEALTH TECHNOLOGIES PROJECT [6469905-2] [6469905] [12-3841] (RS)

03/08/2013

47

Amicus brief filed by Amici Curiae American Civil Liberties Union of Illinois and American Civil Liberties

40 pg, 236.69 KB Union in 12-3841 by consent. Paper copies due on 03/15/2013 Electronically Transmitted. [47] [6469970]

[12-3841] (SK)

03/08/2013

THIS CAUSE CONSISTS OF MORE THAN 5 AMICI CURIAE. The following are those parties to this cause: ANTI-DEFAMATION LEAGUE; CATHOLICS FOR CHOICE; HADASSAH, THE WOMEN'S ZIONIST ORGANIZATION OF AMERICA. INC.; INTERFAITH ALLIANCE FOUNDATION; NATIONAL

COALITION OF AMERICAN NUNS; NATIONAL COUNSIL OF JEWISH WOMEN; PROTESTANTS FOR THE COMMON GOOD; RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE; RELIGIOUS INSTITUTE; UNITARIAN UNIVERSALIST ASSOCIATION; UNITARIAN UNIVERSALIST WOMEN'S FEDERATION. [6469981-2] [6469981] [12-3841] (SK)

03/08/2013

48

Amicus brief filed by Amici Curiae National Women's Law Center, et al. by consent. Paper copies due on

47 pg, 276.07 KB 03/18/2013 Electronically Transmitted. [48] [6470030] [12-3841] (RS)

03/08/2013

49

39 pg, 198.45 KB

Amicus brief filed by Amicus Curiae Americans United for Separation of Church and State, Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, Hindu American Foundation by consent. Paper copies due on 03/18/2013 Electronically Transmitted. [49] [6470083] [123841] (RT)

03/08/2013

50

1 pg, 30.01 KB

Disclosure Statement filed by Attorney Lorie A. Chaiten for Amici Curiae American Civil Liberties Union of Illinois and American Civil Liberties Union. [50] [6470104] [12-3841] (SK)

03/15/2013

51

Submitted appellant reply brief by Edward L. White III for Appellants Cyril B. Korte, Jane E. Korte and

50 pg, 255.28 KB Korte and Luitjohan Contractors, Incorporated in 12-3841. [51] [6471534] [12-3841, 13-1077] (White,

Edward)

03/15/2013

52

Appellant's reply brief filed by Appellants Cyril B. Korte, Jane E. Korte and Korte and Luitjohan

50 pg, 260.95 KB Contractors, Incorporated. Paper copies due on 03/22/2013 Electronically Transmitted. [52] [6471563]

[12-3841] (BS)

03/18/2013

53

Appellee Timothy F. Geithner has been substituted by Appellee Jacob J. Lew in 12-1469, 12-2847, 123524, 12-3841, 13-1077 & 13-1479, pursuant to FRAP 43(c). [53] [6471847] [12-1469, 12-2847, 12-3524, 12-3841, 13-1077, 13-1479] (JR)

03/18/2013

54

Submitted appellee brief by Alisa B. Klein for Appellees Jacob J. Lew, Kathleen Sebelius, Hilda L. Solis,

62 pg, 307.12 KB HHS, LABR and TREA. [54] [6471877] [13-1077] (Klein, Alisa)

03/18/2013

55

Appellee Hilda L. Solis has been substituted by Appellee Seth D. Harris in 12-2565, 12-3841, 13-1077, 13-1369 & 13-1479, pursuant to FRAP 43(c). [55] [6471963] [12-2565, 12-3841, 13-1077, 13-1369, 131479] (JR)

03/18/2013

56

62 pg, 347.75 KB

Appellee's brief filed by Appellees Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, HHS, LABR and TREA. Electronically Transmitted. Paper copies due on 03/25/2013. Appellant's reply brief, if any, is due on or before 04/01/2013 for Appellants Walter F. Grote, William D. Grote III, William Dominic Grote IV, Grote Industries, Incorporated and Grote Industries, LLC. [56] [6471972] [13-1077] (AB)

03/22/2013

57

3 pg, 42.09 KB

Disclosure Statement filed by Attorney Bruce H. Schneider for Physicians for Reproductive Health. Additional Parties: American College of Obstetricians and Gynecologists, American Society for Emergency Contraception, Association of Reproductive Health Professionals, American Society for Reproductive Medicine, Society for Adolescent Health & Medicine, American Medical Wom. [57] [6473233] [13-1077, 12-3841] (Schneider, Bruce)

03/22/2013

58

27 pg, 83.2 KB

Submitted brief by Bruce H. Schneider for amicus Physicians for Reproductive Health, American College of Obstetricians and Gynecologists, American Society for Emergency Contraception, Association of Reproductive Health Professionals, American Society for Reproductive Medicine, Society for Adolescent Hea. Consent from all parties contained within brief. [58] [6473240] [13-1077, 12-3841] (Schneider, Bruce)

03/22/2013

59

27 pg, 82.42 KB

Amicus brief filed by Amici Curiae American College of Obstetricians and Gynecologists and Physicians for Reproductive Choice and Health by consent. Paper copies due on 03/29/2013 Electronically Transmitted. [59] [6473266] [13-1077] (RS)

03/22/2013

THIS CAUSE CONSISTS OF MORE THAN 5 AMICI. The following are those parties to this cause as reflected on the District Court docket, yet are not reflected on the Appellate docket/caption for administrative purposes: AMERICAN SOCIETY FOR EMERGENCY CONTRACEPTION, ASSOCIATION OF REPRODUCTIVE HEALTH PROFESSIONALS, AMERICAN SOCIETY FOR REPRODUCTIVE MEDICINE, SOCIETY FOR ADOLESCENT HEALTH & MEDICINE, AMERICAN MEDICAL WOMEN'S ASSOCIATION, NATIONAL ASSOCIATION OF NURSE PRACTITIONERS IN WOMEN'S HEALTH, JAMES TRUSSELL, SUSAN F. WOOD, DON DOWNING, KATHLEEN BESINQUE[6473270-2] [6473270] [13-1077] (RS)

03/22/2013

60

Filed Appellants Cyril B. Korte, Jane E. Korte and Korte and Luitjohan Contractors, Incorporated in 12-

14 pg, 290.64 KB 3841 Citation of Additional Authority, per Circuit Rule 28(e). [60] [6473284] [12-3841, 13-1077] (White,

Edward)

03/22/2013

61

2 pg, 24.94 KB

NOTICE: Attorney Ms. Alisa B. Klein for Appellees LABR, HHS, TREA, Seth D. Harris, Kathleen Sebelius and Jacob J. Lew in 12-3841 will not be available for oral argument May 28-31, 2013. [61] [6473343] [123841, 13-1077] (Klein, Alisa)

03/25/2013

62

3 pg, 372.64 KB

Disclosure Statement filed by Attorney Ayesha N. Khan, Gregory M. Lipper for Americans United for Separation of Church and State, Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, Hindu American Foundation. [62] [6473646] [13-1077, 12-3841]--[Edited 03/25/2013 by FP; to reflect that this is a non-party/non-aty disclosure statement filed. ] (Lipper, Gregory)

03/25/2013

63

2 pg, 115.08 KB

Disclosure Statement filed by Attorney Martha J. Perkins for Amicus Curiae National Health Law Program in 12-3841. for National Health Law Program, Mexican American Legal Defense and Educational Fund, Asian Pacific American Legal Center, Black Women's Health Imperative, Forward Together, National Hispanic Medical Association, Ipas, SIECUS, Campaign to End AIDS, et al.. Additional Parties: HIV Law Project, National Women and AIDS Collective, and Housing Works. [63] [6473684] [13-1077, 12-3841]-[Edited 03/25/2013 by FP to reflect that this is a non-pty/aty disclosure statement.] (Perkins, Martha)

03/25/2013

64

30 pg, 543.26 KB

Submitted brief by Martha J. Perkins for Amicus Curiae National Health Law Program in 12-3841 amicus National Health Law Program, Mexican American Legal Defense and Educational Fund, Asian Pacific American Legal Center, Black Women's Health Imperative, Forward Together, National Hispanic Medical Association, Ipas, SIECUS, Campaign to End AIDS, et al.. Consent from all parties contained within brief. [64] [6473731] [13-1077, 12-3841] (Perkins, Martha)

03/25/2013

65

39 pg, 497.51 KB

Submitted brief by Gregory M. Lipper for amicus Americans United for Separation of Church and State, Union for Reform Judaism, Central Conference of American Rabbis, Women of Reform Judaism, Hindu American Foundation. Consent from all parties contained within brief. [65] [6473805] [13-1077, 12-3841] (Lipper, Gregory)

03/25/2013

66

Amicus brief filed by Amici Curiae Mexican American Legal Defense and Education Fund, National Health

30 pg, 588.67 KB Law Program, et al., by consent. Electronically Transmitted. Paper copies due on 04/02/2013. [66]

[6473893] [13-1077] (AB)

03/25/2013

THIS CAUSE CONSISTS OF MORE THAN 5 AMICI CURIAE: The following are amicus parties to this cause, yet are not reflected on the Appellate docket/caption for administrative purposes: ASIAN PACIFIC AMERICAN LEGAL CENTER, BLACK WOMEN'S HEALTH IMPERATIVE, FORWARD TOGETHER, NATIONAL HISPANIC MEDICAL ASSOCIATION, IPAS, SEXUALITY INFORMATION AND EDUCATION COUNCIL OF THE U.S. (SIECUS), CAMPAIGN TO END AIDS, HIV LAW PROJECT, NATIONAL WOMEN AND AIDS COLLECTIVE AND HOUSING WORKS. [6473898-2] [6473898] [13-1077] (AB)

03/25/2013

67

39 pg, 499.9 KB

Amicus brief filed by Amicus Curiae Americans United for Separation of Church and State, Union for Reform Judaism, Central Conference of American Rabbis, et al., by consent. Electronically Transmitted. Paper copies due on 04/02/2013. [67] [6473905] [13-1077] (AB)

03/25/2013

THIS CAUSE CONSISTS OF MORE THAN 5 AMICI CURIAE: The following are amicus parties to this cause, yet are not reflected on the Appellate docket/caption for administrative purposes: UNION FOR REFORM JUDAISM, CENTRAL CONFERENCE OF AMERICAN RABBIS, WOMEN OF REFORM JUDAISM AND HINDU AMERICAN FOUNDATION. [6473909-2] [6473909] [13-1077] (AB)

04/01/2013

68

Submitted appellant reply brief by Michael A. Wilkins for Appellants Walter F. Grote, William D. Grote, III,

30 pg, 179.42 KB William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC in 13-1077. [68]

[6475267] [13-1077, 12-3841] (Wilkins, Michael)

04/01/2013

69

Appellant's reply brief filed by Appellants Walter F. Grote, William D. Grote, III, William Dominic Grote, IV,

30 pg, 206.61 KB Grote Industries, Incorporated and Grote Industries, LLC. Paper copies due on 04/08/2013 Electronically

Transmitted. [69] [6475308] [13-1077] (BS)

04/01/2013

70

Argument set for Wednesday, May 22, 2013, at 9:30 a.m. in the Main Courtroom, Room 2721. Each side

4 pg, 137.06 KB limited to 15 minutes. [70] [6475356] [12-3841] (AB)

04/01/2013

71

Argument set for Wednesday, May 22, 2013, at 9:30 a.m. in the Main Courtroom, Room 2721. Each side

4 pg, 136.87 KB limited to 15 minutes. [71] [6475358] [13-1077] (AB)

04/01/2013

72

1 pg, 86.08 KB

Notice to the District Court to transmit the record on appeal. [72] [6475369] [13-1077] [72] [6475369] [131077]--[Edited 04/01/2013 by AB] (AB)

04/01/2013

73

Original record on appeal filed electronically. Contents of record : 1 vol. of pleadings. [73] [6475497] [13-

393 pg, 7.16 MB 1077] (SK)

04/01/2013

74

Original record on appeal filed electronically. Contents of record : 4 vol. of pleadings. [74] [6475542] [12-

512 pg, 25.41 MB 3841] (BS)

04/01/2013

75

Filed electronic transcript of proceedings held on 12/07/12. [75] [6475544] THIS TRANSCRIPT IS FOR INTERNAL COURT USE ONLY. Remote electronic access to the transcript is ONLY available through the District Court's PACER system. [12-3841] (BS)

04/04/2013

76

Received argument confirmation from Alisa B. Klein for Appellees Seth D. Harris, Jacob J. Lew, Kathleen

4 pg, 464.19 KB Sebelius, HHS, LABR and TREA in 13-1077. [76] [6476599] [12-3841, 13-1077] (Klein, Alisa)

04/05/2013

77

2 pg, 101.95 KB

Received argument confirmation from Edward L. White for Appellants Cyril B. Korte, Jane E. Korte and Korte and Luitjohan Contractors, Incorporated in 12-3841. [77] [6476601] [12-3841, 13-1077] (White, Edward)

04/05/2013

78

2 pg, 16.96 KB

NOTICE: Attorney Ms. Alisa B. Klein for Appellees LABR, HHS, TREA, Seth D. Harris, Kathleen Sebelius and Jacob J. Lew in 12-3841 will not be available for oral argument (request to schedule cases first and second on the May 22, 2013 calendar). [78] [6476617] [12-3841, 13-1077]--[Edited 04/05/2013 by AB] (Klein, Alisa)

04/09/2013

79

2 pg, 332.4 KB

Received argument confirmation from Matthew S. Bowman for Appellants Walter F. Grote, William D. Grote, III, William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC in 13-1077. [79] [6477487] [13-1077, 12-3841] (Wilkins, Michael)

04/22/2013

80

Filed Appellants Cyril B. Korte, Jane E. Korte and Korte and Luitjohan Contractors, Incorporated in 12-

16 pg, 157.42 KB 3841 Citation of Additional Authority, per Circuit Rule 28(e). [80] [6480488] [12-3841, 13-1077] (White,

Edward)

04/23/2013

81

6 pg, 81.41 KB

Filed Notice of supplemental briefing on jurisdictional issues by Appellees Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, HHS, LABR and TREA in 12-3841. [81] [6480746] [12-3841, 13-1077] (Klein, Alisa)

04/23/2013

82

4 pg, 115.78 KB

Joint motion filed by Appellants Walter F. Grote, William D. Grote, III, William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC in 13-1077, Appellants Cyril B. Korte, Jane E. Korte and Korte and Luitjohan Contractors, Incorporated in 12-3841 to strike Notice of Supplemental Briefing on Jurisdictional Issues. [82] [6480937] [13-1077, 12-3841] (Wilkins, Michael)

04/23/2013

83

3 pg, 45.19 KB

Filed Response by Appellees Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, HHS, LABR and TREA in 12-3841 to appellants' joint motion to strike notice of supplemental briefing on jurisdictional issues. [83] [6480998] [12-3841, 13-1077] (Klein, Alisa)

04/25/2013

84

15 pg, 266.93 KB

ORDER: The following motion(s) and/or document(s) shall be taken with the case for determination by the merits panel: 1.) NOTICE OF SUPPLEMENTAL BRIEFING ON JURISDICTIONAL ISSUES, 2.) PLAINTIFFS-APPELLANTS' JOINT MOTION TO STRIKE "NOTICE OF SUPPLEMENTAL BRIEFING" and 3.) RESPONSE TO PLAINTIFFS' MOTION TO STRIKE NOTICE OF SUPPLEMENTAL BRIEFING ON JURISDICTIONAL ISSUES. When the merits briefing is distributed to the panel the clerk shall also distribute the motions and a copy of this order. JRN [84] [6481392] [12-3841, 13-1077] (ER)

05/07/2013

85

Filed Appellants Cyril B. Korte, Jane E. Korte and Korte and Luitjohan Contractors, Incorporated in 12-

16 pg, 460.64 KB 3841 Citation of Additional Authority, per Circuit Rule 28(e). Argument set for: 05/22/2013. [85] [6484358]

[12-3841, 13-1077] (White, Edward)

05/18/2013

86

4 pg, 61.74 KB

Filed Appellees Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, HHS, LABR and TREA in 12-3841 Citation of Additional Authority, per Circuit Rule 28(e). Argument set for: 05/22/2013. [86] [6487187] [123841, 13-1077] (Klein, Alisa)

05/22/2013

87

Case heard and taken under advisement by panel: Joel M. Flaum, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [87] [6487875] [13-1077] (LJ)

05/22/2013

88

Case argued by Matthew Bowman for Appellants Grote Industries, LLC, Grote Industries, Incorporated, William D. Grote, III, William Dominic Grote, IV and Walter F. Grote and Ms. Alisa B. Klein for Appellees LABR, HHS, TREA, Seth D. Harris, Kathleen Sebelius and Jacob J. Lew. [88] [6487877] [13-1077] (LJ)

06/25/2013

89

2 pg, 272.98 KB

Filed Appellants Walter F. Grote, William D. Grote, III, William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC in 13-1077, Appellants Cyril B. Korte, Jane E. Korte and Korte and Luitjohan Contractors, Incorporated in 12-3841 Citation of Additional Authority, per Circuit Rule 28(e). [89] [6495909] [13-1077, 12-3841] (Wilkins, Michael)

06/26/2013

90

39 pg, 2.37 MB

Filed Appellants Cyril B. Korte, Jane E. Korte and Korte and Luitjohan Contractors, Incorporated in 123841, Appellants Walter F. Grote, William D. Grote, III, William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC in 13-1077 Citation of Additional Authority, per Circuit Rule 28(e). Argument set for: 05/22/2013. [90] [6496265] [12-3841, 13-1077] (White, Edward)

06/27/2013

91

3 pg, 21.06 KB

Filed Response by Appellees Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, HHS, LABR and TREA in 12-3841 to appellants' 28j letter of June 26, 2013. [91][6496367] [12-3841, 13-1077] (Klein, Alisa)

06/28/2013

92
168 pg, 417.04 KB

Filed Appellants Cyril B. Korte, Jane E. Korte and Korte and Luitjohan Contractors, Incorporated in 123841, Appellants Walter F. Grote, William D. Grote, III, William Dominic Grote, IV, Grote Industries, Incorporated and Grote Industries, LLC in 13-1077 Citation of Additional Authority, per Circuit Rule 28(e). Argument set for: 05/22/2013. [92] [6496906] [12-3841, 13-1077] (White, Edward)

07/02/2013

93

3 pg, 21.14 KB

Filed Appellees Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, HHS, LABR and TREA in 13-1077 Citation of Additional Authority, per Circuit Rule 28(e). Argument set for: 05/22/2013. [93] [6497881] [12-

3841, 13-1077] (Klein, Alisa)