1 (Slip Opinion) OCTOBER TERM, 2013

Syllabus

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


## SUPREME COURT OF THE UNITED STATES

Syllabus

BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL

. v . HOBBY LOBBY STORES, INC.,

ET AL

.

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

No. 13–354. Argued March 25, 2014—Decided June 30, 2014*

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the

“Government [from] substa ntially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicabil

ity” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling govern

mental interest; and (2) is the leas t restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious be

lief.” §2000cc–5(7)(A).

At issue here are regulations promulgated by the Department of Health and Human Services (HHS) und er the Patient Protection and Affordable Care Act of 2010 (ACA), which, as relevant here, requires specified employers’ gr oup health plans to furnish “preventive care and screenings” for women without “a ny cost sharing requirements,” 42 U. S. C. §300gg–13(a)(4). Congress did not specify what types of preventive care must be covered; it authorized the Health Resources and Services Administration, a component of HHS, to decide. Ibid

. Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approv ed by the Food and Drug Admin

-

——————

* Together with No. 13–356, Conestoga Wood Specialties Corp. et al.

v. Burwell, Secretary of Health and Human Services, et al., on certiorari
to the United States Court of Appeals for the Third Circuit.2 BURWELL v. HOBBY LOBBY STORES, INC.

Syllabus

istration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. Religious employers, such as churches, are exempt from this contraceptive ma ndate. HHS has also effectively exempted religious nonprofit organi zations with religious objections to providing coverage for contraceptive services. Under this accom

modation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan partic ipants with separate payments for contraceptive services without imposing any cost

sharing requirements on the employer, its insurance plan, or its em

ployee beneficiaries.

In these cases, the owners of th ree closely held for-profit corpora

tions have sincere Christian beliefs th at life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after th at point. In separate actions, they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exerci se Clause, seeking to enjoin application of the contraceptive mand ate insofar as it requires them to provide health coverage for the four objectionable contraceptives. In No. 13–356, the District Court denied the Hahns and their compa

ny—Conestoga Wood Specialties—a preliminary injunction. Affirm

ing, the Third Circuit held that a for-profit corporation could not “en

gage in religious exercise” under RFRA or the First Amendment, and that the mandate imposed no requ irements on the Hahns in their personal capacity. In No. 13–354, the Greens, their children, and their companies—Hobby Lobby Stores and Mardel—were also denied a preliminary injunction, but the Tent h Circuit reversed. It held that the Greens’ businesses are “persons ” under RFRA, and that the cor

porations had established a likelih ood of success on their RFRA claim because the contraceptive mandate substantially burd ened their ex

ercise of religion and HHS had not demonstrated a compelling inter

est in enforcing the mandate agains t them; in the alternative, the court held that HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling governmental interest.

Held : As applied to closely held corp orations, the HHS regulations im

posing the contraceptive mandate violate RFRA. Pp. 16–49.

(a) RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, Hobby Lobby, and Mar

del. Pp. 16–31. (1) HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the comp anies, but that would leave mer

chants with a difficult choice: give up the right to seek judicial protec

tion of their religious liberty or fo rgo the benefits of operating as cor

-3 Cite as: 573 U. S. ____ (2014)

Syllabus

porations. RFRA’s text shows that Congress designed the statute to provide very broad protection for re ligious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fic

tion of including corporations with in RFRA’s definition of “persons,” but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including sharehold

ers, officers, and employees. Protec ting the free-exercise rights of closely held corporations thus prot ects the religious liberty of the humans who own and control them. Pp. 16–19. (2) HHS and the dissent make several unpersuasive arguments. Pp. 19–31. (i) Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of “person,” which “include[s] cor

porations, . . . as well as individual s.” 1 U. S. C. §1. The Court has entertained RFRA and free-exercise claims brought by nonprofit cor

porations. See, e.g., Gonzales v. O Centro Espírita Beneficiente União do Vegetal , 546 U. S. 418. And HHS’s concession that a nonprofit corporation can be a “person” under RFRA effectively dispatches any argument that the term does not reach for-profit corporations; no conceivable definition of “person” includes natural persons and non

profit corporations, but not for-profit corporations. Pp. 19–20. (ii) HHS and the dissent no netheless argue that RFRA does not cover Conestoga, Hobby Lobby, and Mardel because they cannot “exercise . . . religion.” They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofi t corporations. And the profit

making objective of the corporatio ns cannot explain it because the
Court has entertained the free-exer cise claims of individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown , 366 U. S. 599. Business practices compelled or limited by the tenets of a religious doctrine fa ll comfortably within the understand

ing of the “exercise of religion” that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U. S. 872, 877. Any suggestion that for-profit corp orations are incapable of exercis

ing religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were in corporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners’ religious principles. Pp. 20–25. (iii) Also flawed is the claim that RFRA offers no protection be

cause it only codified pre- Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit corporations. First, nothing in RF RA as originally enacted suggested
that its definition of “exercise of re ligion” was meant to be tied to pre

-4 BURWELL v. HOBBY LOBBY STORES, INC.

Syllabus

Smith interpretations of the First Amendment. Second, if RFRA’s original text were not clear enou gh, the RLUIPA amendment surely dispels any doubt that Congress intended to separate the definition of the phrase from that in First Am endment case law. Third, the preSmith case of Gallagher v. Crown Kosher Super Market of Mass., Inc.

, 366 U. S. 617, suggests, if anything, that for-profit corporations can exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide very broad protec tion for religious liberty, merely restored this Court’s pre- Smith decisions in ossified form and re

stricted RFRA claims to plaintiffs who fell within a category of plain

tiffs whose claims the Court had recognized before Smith . Pp. 25–28. (3) Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because of the difficulty of ascertaining the “beliefs” of large, publicly traded corporations, but HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would like

ly prevent that from o ccurring. HHS has also provided no evidence that the purported problem of determ ining the sincerity of an assert

ed religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. That disp utes among the owners of corpora

tions might arise is not a problem unique to this context. State cor

porate law provides a ready means for resolving any conflicts by, for example, dictating how a corporat ion can establish its governing
structure. Courts will turn to th at structure and the underlying state law in resolving disputes. Pp. 29–31.

(b) HHS’s contraceptive mandate substantially burdens the exer

cise of religion. Pp. 31–38. (1) It requires the Hahns and Greens to engage in conduct that seriously violates their sincere relig ious belief that life begins at con

ception. If they and their companies refuse to provide contraceptive coverage, they face severe economic consequences: about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel. And if they drop coverage altogeth

er, they could face penalties of roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel. P. 32. (2) Amici supporting HHS argue that the $2,000 per-employee penalty is less than the average cost of providing insurance, and therefore that dropping insurance coverage eliminates any substan

tial burden imposed by the mandate. HHS has never argued this and the Court does not know its position with respect to the argument.
But even if the Court reached the argument, it would find it unper

suasive: It ignores the fact that the plaintiffs have religious reasons for providing health-insurance coverage for their employees, and it is
far from clear that the net cost to the companies of providing insur

-5 Cite as: 573 U. S. ____ (2014)

Syllabus

ance is more than the cost of dropping their insurance plans and pay

ing the ACA penalty. Pp. 32–35. (3) HHS argues that the conne ction between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the empl oyee who will choose the coverage and contraceptive method she uses. But RFRA’s question is whether the mandate imposes a substantial bu rden on the objecting parties’ ability to conduct business in accordance with their religious beliefs.
The belief of the Hahns and Greens implicates a difficult and im

portant question of religion and moral philosophy, namely, the cir

cumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facili

tating the commission of an immoral ac t by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana Employment Security Div. , 450 U. S. 707. The Court’s “narrow function . . . is to determine” whether the plaintiffs’ asserted religious belief reflects “an honest conviction,” id ., at 716, and there is no dispute here that it
does. Tilton v. Richardson , 403 U. S. 672, 689; and Board of Ed. of
Central School Dist. No. 1 v. Allen , 392 U. S. 236, 248–249, distin

guished. Pp. 35–38.

(c) The Court assumes that the in terest in guaranteeing cost-free access to the four challenged cont raceptive methods is a compelling governmental interest, but the Gove rnment has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest. Pp. 38–49. (1) The Court assumes that the interest in guaranteeing cost-free access to the four challenged co ntraceptive methods is compelling within the meaning of RFRA. Pp. 39–40. (2) The Government has fa iled to satisfy RFRA’s least

restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., as

sume the cost of providing the four contraceptives to women unable to obtain coverage due to their empl oyers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with re

ligious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing in

surance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests. Pp. 40–45. (3) This decision concerns on ly the contraceptive mandate and should not be understood to hold that all insurance-coverage man

-6 BURWELL v. HOBBY LOBBY STORES, INC.

Syllabus

dates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice. United States v. Lee , 455 U. S. 252, which up

held the payment of Social Security taxes despite an employer’s reli

gious objection, is not analogous. It turned primarily on the special problems associated with a nation al system of taxation; and if Lee were a RFRA case, the fundamental point would still be that there is no less restrictive alternative to the categorical requirement to pay taxes. Here, there is an alternat ive to the contraceptive mandate. Pp. 45–49.

No. 13–354, 723 F. 3d 1114, affirmed; No. 13–356, 724 F. 3d 377, re

versed and remanded.

A LITO

, J., delivered the opinion of the Court, in which R OBERTS

, C. J.,
and S CALIA , K ENNEDY , and T HOMAS

, JJ., joined. K ENNEDY

, J., filed a concurring opinion. G INSBURG

, J., filed a dissenting opinion, in which
S OTOMAYOR

, J., joined, and in which B REYER and K AGAN

, JJ., joined as
to all but Part III–C–1. B REYER and K AGAN

, JJ., filed a dissenting opin

ion._________________

_________________ 1 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


## SUPREME COURT OF THE UNITED STATES

Nos. 13–354 and 13–356

SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL ., PETITIONERS

13–354 v. HOBBY LOBBY STORES, INC., ET AL

.

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

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL ., PETITIONERS

13–356 v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL

.

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

[June 30, 2014]

J USTICE A LITO delivered the opinion of the Court.
We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq ., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage fo r methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the2 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

Federal Government from taking any action that substan

tially burdens the exercise of religion unless that action
constitutes the least restrictive means of serving a compel

ling government interest. In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies for

feited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprie

torships or general partnerships. The plain terms of RFRA make it perfectly clea r that Congress did not dis

criminate in this way against men and women who wish to run their businesses as for-profit corporations in the man

ner required by their religious beliefs. Since RFRA applies in these cases, we must decide whether the challenged HHS regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to thei r religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would. Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest , and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also consti

tute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HH S could equally ensure that every woman has cost-free access to the particular contra

ceptives at issue here and, indeed, to all FDA-approved contraceptives.3 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of reli

gious nonprofit corporations while ensuring that the em

ployees of these entities have precisely the same access to all FDA-approved contraceptives as employees of compa

nies whose owners have no religious objections to provid

ing such coverage. The employees of these religious non

profit corporations still have access to insurance coveragewithout cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage. Although HHS has made this system available to reli

gious nonprofits that have religious objections to the con

traceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an
alternative that achieves all of the Government’s aims while providing greater respe ct for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful. As this description of our reasoning shows, our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious
beliefs.” Post , at 1 (opinion of G INSBURG , J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages . . . on others” or that require “the general public [to] pick up the
tab.” Post , at 1–2

. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corpo

ration’s religious beliefs no matter the impact that ac

commodation may have on . . . thousands of women em

-4 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

ployed by Hobby Lobby.” Post, at 2. 1 The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.

I
A
Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty

. RFRA’s enactment came three years after this Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith , 494
U. S. 872 (1990), which largely repudiated the method of analyzing free-exercise claims that had been used in cases
like Sherbert v. Verner , 374 U. S. 398 (1963), and Wisconsin v. Yoder , 406 U. S. 205 (1972). In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the chal

lenged action imposed a substantial burden on the prac

tice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. 374 U. S., at 408–409.
And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406

U. S., at 210–211, 234–236.

In Smith , however, the Court rejected “the balancing

——————

1 See also post , at 8 (“The exemption sought by Hobby Lobby and Conestoga . . . would deny [their employees] access to contraceptive coverage that the ACA would otherwise secure”)5 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

test set forth in Sherbert .” 494 U. S., at 883. Smith con

cerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consump

tion of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause. 494 U. S., at 875. This Court then reversed, observing that use of the
Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” 494 U. S., at 888. The Court therefore held that, under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a comp elling governmental inter

est.” City of Boerne v. Flores , 521 U. S. 507, 514 (1997). Congress responded to Smith by enacting RFRA. “[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U. S. C. §2000bb(a)(2); see also §2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” §2000bb–1(a). 2 If the Govern

ment substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that appli

cation of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of further ing that compelling govern

-

——————

2 The Act defines “government” to include any “department” or “agency” of the United States. §2000bb–2(1).6 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

mental interest.” §2000bb–1(b). 3 As enacted in 1993, RFRA applied to both the Federal Government and the States, but the constitutional author

ity invoked for regulating federal and state agencies dif

fered. As applied to a federal agency, RFRA is based on the enumerated power that supports the particular agen

cy’s work, 4 but in attempting to regulate the States and their subdivisions, Congress relied on its power under
Section 5 of the Fourteenth Amendment to enforce the First Amendment. 521 U. S., at 516–517. In City of

Boerne , however, we held that Congress had overstepped its Section 5 authority because “[t]he stringent test RFRA demands” “far exceed[ed] any pattern or practice of uncon

stitutional conduct under the Free Exercise Clause as interpreted in Smith .” Id. , at 533–534. See also id. , at

532. Following our decision in City of Boerne , Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq . That statute, enacted under Congress’s Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. See Cutter v. Wilkinson , 544
U. S. 709, 715–716 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA’s definition of the “exercise of religion.” See §2000bb–2(4) (importing RLUIPA definition). Before RLUIPA, RFRA’s definition

——————

3 In City of Boerne v. Flores , 521 U. S., 507 (1997), we wrote that RFRA’s “least restrictive means requ irement was not used in the preSmith jurisprudence RFRA purported to codify.” Id. , at 509. On this understanding of our pre- Smith cases, RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under
those decisions.

4 See, e.g. , Hankins v. Lyght , 441 F. 3d 96, 108 (CA2 2006); Guam v. Guerrero , 290 F. 3d 1210, 1220 (CA9 2002).7 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

made reference to the First Amendment. See §2000bb– 2(4) (1994 ed.) (defining “exercise of religion” as “the exer

cise of religion under the First Amendment”). In RLUIPA,
in an obvious effort to effect a complete separation from First Amendment case law, Co ngress deleted the reference
to the First Amendment and defined the “exercise of reli

gion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). And Congress mandated that this con

cept “be construed in favor of a broad protection of reli

gious exercise, to the maximu m extent permitted by the terms of this chapter and the Constitution.” §2000cc– 3(g). 5

B
At issue in these cases are HHS regulations promulgated under the Patient Protection and Affordable Care Act of 2010 (ACA), 124 Stat. 119. ACA generally requires employers with 50 or more full-time employees to offer “a group health plan or group health insurance coverage” that provides “minimum essent ial coverage.” 26 U. S. C. §5000A(f)(2); §§4980H(a), (c)(2). Any covered employer that does not provide such coverage must pay a substan

tial price. Specifically, if a covered employer provides group health insurance but its plan fails to comply with ACA’s group-health-plan requirements, the employer may be required to pay $100 per day for each affected “individ

-

——————

5 The principal dissent appears to cont end that this rule of construc

tion should apply only when defining the “exercise of religion” in an RLUIPA case, but not in a RFRA case. See post , at 11, n. 10. That argument is plainly wrong. Under th is rule of construction, the phrase “exercise of religion,” as it appears in RLUIPA, must be interpreted broadly, and RFRA states that the same phrase, as used in RFRA, means “religious exercis[e] as defined in [RLUIPA].” 42 U. S. C. §2000bb–2(4). It necessarily follows that the “exercise of religion” under RFRA must be given the same broad meaning that applies under
RLUIPA.8 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

ual.” §§4980D(a)–(b). And if the employer decides to stop providing health insurance altogether and at least one full-time employee enrolls in a health plan and qualifies for a subsidy on one of the go vernment-run ACA exchanges, the employer must pay $2,000 per year for each of its full

time employees. §§4980H(a), (c)(1). Unless an exception applies, ACA requires an employ

er’s group health plan or group-health-insurance coverage to furnish “preventive care and screenings” for women without “any cost sharing requirements.” 42 U. S. C. §300gg–13(a)(4). Congress itself, however, did not specify what types of preventive care must be covered. Instead, Congress authorized the Health Resources and Services Administration (HRSA), a component of HHS, to make that important and sensitive decision. Ibid . The HRSA in turn consulted the Institute of Medicine, a nonprofit group of volunteer advisers, in determining which preventive services to require. See 77 Fed. Reg. 8725–8726 (2012). In August 2011, based on the Institute’s recommenda

tions, the HRSA promulgated the Women’s Preventive
Services Guidelines. See id. , at 8725–8726, and n. 1; online at http://hrsa.gov/womensguidelines (all Internet materials as visited June 26, 2014, and available in Clerk of Court’s case file). The Guidelines provide that nonex

empt employers are generally required to provide “cover

age, without cost sharing” for “[a]ll Food and Drug Ad

ministration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and coun

seling.” 77 Fed. Reg. 8725 (internal quotation marks omitted)

. Although many of the required, FDA-approved methods of contraception work by preventing the fertiliza

tion of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. See Brief for HHS9 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

in No. 13–354, pp. 9–10, n. 4; 6 FDA, Birth Control: Medi

cines to Help You. 7 HHS also authorized the HRSA to establish exemptions from the contraceptive mandate for “religious employers.” 45 CFR §147.131(a). That category encompasses “churches,their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” See ibid (citing 26

U. S. C. §§6033(a)(3)(A)(i), (iii)). In its Guidelines, HRSA exempted these organizations from the requirement to cover contraceptive services. See http://hrsa.gov / womensguidelines. In addition, HHS has effectively exempted certain religious nonprofit organiza tions, described under HHS regulations as “eligible organi zations,” from the contracep

tive mandate. See 45 CFR §147.131(b); 78 Fed. Reg. 39874 (2013). An “eligible organization” means a nonprofit organization that “holds itse lf out as a religious organization” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.” 45 CFR §147.131(b). To qualify for this accommodation, an employer must certify that it is such an organization. §147.131(b)(4). When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan

——————

6 We will use “Brief for HHS” to refer to the Brief for Petitioners in No. 13–354 and the Brief for Respondents in No. 13–356. The federal parties are the Departments of HHS, Treasury, and Labor, and the Secretaries of those Departments.

7 Online at http://www.fda.gov/forconsumers/byaudience/forwomen / freepublications/ucm313215.htm. The owners of the companies in

volved in these cases and others who believe that life begins at concep

tion regard these four methods as causing abortions, but federal regula

tions, which define pregnancy as beginning at implantation, see, e.g ., 62 Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify

them.10 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. §147.131(c). 8 Al

though this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. 78 Fed. Reg. 39877. 9 In addition to these exemptions for religious organiza

tions, ACA exempts a great many employers from most of its coverage requirements. Employers providing “grandfa

thered health plans”—those that existed prior to March 23, 2010, and that have not made specified changes after that date—need not comply with many of the Act’s re

quirements, including the contraceptive mandate. 42

U. S. C. §§18011(a), (e). And employers with fewer than 50 employees are not required to provide health insurance

——————

8 In the case of self-insured religio us organizations entitled to the accommodation, the third-party administrator of the organization must “provide or arrange payments for contraceptive services” for the organi

zation’s employees without imposing any cost-sharing requirements on the eligible organization, its insura nce plan, or its employee beneficiar

ies. 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815– 2713A(b)(2)). The regulations esta blish a mechanism for these third

party administrators to be compensated for their expenses by obtaining a reduction in the fee paid by insure rs to participate in the federally facilitated exchanges. See 78 Fed. Reg. 39893 (to be codified in 26 CFR §54.9815–2713A (b)(3)). HHS believes that these fee reductions will not materially affect funding of the exchanges because “payments for contraceptive services will represen t only a small portion of total [exchange] user fees.” 78 Fed. Reg. 39882.

9 In a separate challenge to this framework for religious nonprofit organizations, the Court recently ordered that, pending appeal, the eligible organizations be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party
administrators. See Little Sisters of the Poor v. Sebelius , 571 U. S. ___ (2014).11 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

at all. 26 U. S. C. §4980H(c)(2). All told, the contraceptive mandate “presently does not apply to tens of millions of people.” 723 F. 3d 1114, 1143 (CA10 2013). This is attributable, in large part, to grand

fathered health plans: Over one-third of the 149 million nonelderly people in Americ a with employer-sponsored health plans were enrolled in grandfathered plans in 2013. Brief for HHS in No. 13–354, at 53; Kaiser Family Foun

dation & Health Research & Educational Trust, Employer Health Benefits, 2013 Annual Survey 43, 221. 10 The count for employees working for fir ms that do not have to pro

vide insurance at all because they employ fewer than 50 employees is 34 million worker s. See The Whitehouse,
Health Reform for Small Busi nesses: The Affordable Care
Act Increases Choice and Sa ving Money for Small Busi

nesses 1. 11

II
A

Norman and Elizabeth Hahn and their three sons are devout members of the Mennonite Church, a Christian denomination. The Mennonite Church opposes abortion and believes that “[t]he fetus in its earliest stages . . . shares humanity with those who conceived it.” 12 Fifty years ago, Norman Hahn started a wood-working business in his garage, and since then, this company, Conestoga Wood Specialties, has grown and now has 950 employees. Conestoga is organized under Pennsylvania

——————

10 While the Government predicts th at this number will decline over time, the total number of American s working for employers to whom the contraceptive mandate does not ap ply is still substantial, and there is no legal requirement that grandfathered plans ever be phased out.

11 Online at http :// www

. whitehouse

. gov / files / documents / health

_ reform_for_small_businesses.pdf.

12 Mennonite Church USA, Statem ent on Abortion, online at http://www.mennoniteusa.org /resource-center/resources /statements -and

resolutions/statem ent-on-abortion/.12 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

law as a for-profit corporation. The Hahns exercise sole ownership of the closely held business; they control its board of directors and hold all of its voting shares. One of the Hahn sons serves as the president and CEO. The Hahns believe that they are required to run their
business “in accordance with their religious beliefs and moral principles.” 917 F. Supp. 2d 394, 402 (ED Pa. 2013). To that end, the company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.” Ibid. (internal quotation marks omitted). The company’s “Vi

sion and Values Statements” affirms that Conestoga endeavors to “ensur[e] a reasonable profit in [a] manner that reflects [the Hahns’] Christian heritage.” App. in No. 13–356, p. 94 (complaint).

As explained in Conestoga’ s board-adopted “Statement on the Sanctity of Human Life,” the Hahns believe that “human life begins at conception.” 724 F. 3d 377, 382, and

n. 5 (CA3 2013) (internal quotation marks omitted). It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held
accountable.” Ibid. (internal quotation marks omitted). The Hahns have accordingly excluded from the group

health-insurance plan they offe r to their employees certain contraceptive methods that they consider to be abortifa

cients. Id. , at 382. The Hahns and Conestoga sued HHS and other federal officials and agencies under RFRA and the Free Exercise Clause of the First Amendment, seeking to enjoin applica

tion of ACA’s contraceptive mandate insofar as it requires them to provide health-insurance coverage for four FDA

approved contraceptives that may operate after the fertili

zation of an egg. 13 These include two forms of emergency

——————

13 The Hahns and Conestoga also claimed that the contraceptive13 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

contraception commonly called “morning after” pills and two types of intrauterine devices. 14 In opposing the requirement to provide coverage for the contraceptives to which they object, the Hahns argued
that “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.” Ibid . The District Court denied a prelimi

nary injunction, see 917 F. Supp. 2d, at 419, and the Third Circuit affirmed in a divided opinion, holding that “for

profit, secular corporations cannot engage in religious exercise” within the meaning of RFRA or the First Amendment. 724 F. 3d, at 381. The Third Circuit also rejected the claims brought by the Hahns themselves because it concluded that the HHS “[m]andate does not impose any requirements on the Hahns” in their personal capacity. Id. , at 389.

B

David and Barbara Green and their three children are Christians who own and operate two family businesses. Forty-five years ago, David Green started an arts-and

crafts store that has grown in to a nationwide chain called Hobby Lobby. There are now 500 Hobby Lobby stores, and the company has more than 13,000 employees. 723 F. 3d, at 1122. Hobby Lobby is organized as a for-profit corpora

tion under Oklahoma law. One of David’s sons started an affiliated business, Mar

del, which operates 35 Christian bookstores and employs close to 400 people. Ibid . Mardel is also organized as a for-profit corporation under Oklahoma law. Though these two businesses have expanded over the

—————— mandate violates the Fifth Amendm ent and the Administrative Proce

dure Act, 5 U. S. C. §553, but those claims are not before us.

14 See, e.g. , WebMD Health News, New Morning-After Pill Ella Wins FDA Approval, online at http://www.we bmd.com/sex/birth-control/news / 20100813/new-morning-after-p ill-ella-wins-fda-approval.14 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

years, they remain closely held, and David, Barbara, and their children retain exclusive control of both companies.
Ibid . David serves as the CEO of Hobby Lobby, and his three children serve as the pres ident, vice president, and vice CEO. See Brief for Respondents in No. 13–354, p. 8. 15 Hobby Lobby’s statement of purpose commits the Greens to “[h]onoring the Lord in all [they] do by operat

ing the company in a manner consistent with Biblical principles.” App. in No. 13–354, pp. 134–135 (complaint). Each family member has signed a pledge to run the busi

nesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries. 723 F. 3d, at 1122. In accordance with those commit

ments, Hobby Lobby and Mardel stores close on Sundays, even though the Greens calculate that they lose millions in sales annually by doing so. Id. , at 1122; App. in No. 13– 354, at 136–137. The businesses refuse to engage in prof

itable transactions that facilit ate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to “know Jesus as Lord and Savior.”

Ibid. (internal quotation marks omitted). Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facili

tate access to contraceptive drugs or devices that operate after that point. 723 F. 3d, at 1122. They specifically object to the same four contraceptive methods as the Hahns and, like the Hahns, they have no objection to the other 16 FDA-approved methods of birth control. Id. , at 1125. Although their group-health-insurance plan pre

dates the enactment of ACA, it is not a grandfathered plan

——————

15 The Greens operate Hobby Lobby and Mardel through a manage

ment trust, of which each member of the family serves as trustee. 723

F. 3d 1114, 1122 (CA10 2013). The family provided that the trust would also be governed according to their religious principles. Ibid.Cite as: 573 U. S. ____ (2014) 15

Opinion of the Court

because Hobby Lobby elected no t to retain grandfathered status before the contraceptive mandate was proposed.
Id. , at 1124. The Greens, Hobby Lobby, and Mardel sued HHS and other federal agencies and officials to challenge the con

traceptive mandate under RFRA and the Free Exercise
Clause. 16 The District Court denied a preliminary injunc

tion, see 870 F. Supp. 2d 1278 (WD Okla. 2012), and the plaintiffs appealed, moving for initial en banc considera

tion. The Tenth Circuit granted that motion and reversed in a divided opinion. Contrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens’ two for-profit businesses are “persons” within the meaning of RFRA and therefore may bring suit under that law. The court then held that the corporations had estab

lished a likelihood of success on their RFRA claim. 723

F. 3d, at 1140–1147. The court concluded that the contra

ceptive mandate substantially burdened the exercise of religion by requiring the companies to choose between “compromis[ing] their religious beliefs” and paying a heavy fee—either “close to $475 million more in taxes every year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26 million” annu

ally if they “drop[ped] heal th-insurance benefits for all employees.” Id. , at 1141.
The court next held that HHS had failed to demonstrate a compelling interest in enforcing the mandate against the Greens’ businesses and, in the alternative, that HHS had failed to prove that enforcement of the mandate was the “least restrictive means” of furthering the Government’s
asserted interests. Id. , at 1143–1144 (emphasis deleted; internal quotation marks omitte d). After concluding that the companies had “demonstrated irreparable harm,” the

——————

16 They also raised a claim under th e Administrative Procedure Act, 5

U. S. C. §553.16 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

court reversed and remanded for the District Court to consider the remaining factors of the preliminary

injunction test. Id. , at 1147. 17 We granted certiorari. 571 U. S. ___ (2013).

III
A
RFRA prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the
burden to the person —(1) is in furtherance of a compelling governmental interest; and (2 ) is the least restrictive means of furthering that co mpelling governmental inter

est.” 42 U. S. C. §§2000bb–1(a), (b) (emphasis added). The first question that we must address is whether this provision applies to regulations that govern the activities of for-profit corporations like Hobby Lobby, Conestoga,
and Mardel. HHS contends that neither these companies nor their owners can even be heard under RFRA. According to HHS, the companies cannot sue because they seek to make a profit for their owners, and the owners cannotbe heard because the regulations, at least as a formal matter, apply only to the companies and not to the owners as individuals. HHS’s argument would have dramatic

consequences. Consider this Court’s decision in Braunfeld v . Brown

,

——————

17 Given its RFRA ruling, the court dec lined to address the plaintiffs’ free-exercise claim or the question whether the Greens could bring RFRA claims as individual owners of Hobby Lobby and Mardel. Four judges, however, concluded that the Greens could do so, see 723 F. 3d, at 1156 (Gorsuch, J., concurring); id. , at 1184 (Matheson, J., concurring in part and dissenting in part), an d three of those judges would have granted plaintiffs a preliminary injunction, see id. , at 1156 (Gorsuch, J., concurring).17 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

366 U. S. 599 (1961) (plurality opinion). In that case, five
Orthodox Jewish merchants who ran small retail busi

nesses in Philadelphia challenged a Pennsylvania Sunday closing law as a violation of the Free Exercise Clause. Because of their faith, these merchants closed their shops on Saturday, and they argued that requiring them to remain shut on Sunday threatened them with financial ruin. The Court entertained their claim (although it ruled against them on the merits), and if a similar claim were raised today under RFRA against a jurisdiction still sub

ject to the Act (for example, the District of Columbia, see 42 U. S. C. §2000bb–2(2)), the merchants would be enti

tled to be heard. Accordin g to HHS, however, if thesemerchants chose to incorporate their businesses—without in any way changing the size or nature of their busi

nesses—they would forfeit all RFRA (and free-exercise) rights. HHS would put these merchants to a difficult choice: either give up the righ t to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations. As we have seen, RFRA was designed to provide very broad protection for religious liberty. By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required. 18 Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS sug

gests? An examination of RFRA’s text, to which we turn

——————

18 As discussed, n. 3, supra , in City of Boerne we stated that RFRA, by imposing a least-restrictive-means test, went beyond what was re

quired by our pre- Smith decisions. Although the author of the principal dissent joined the Court’s opinion in City of Boerne , she now claims that
the statement was incorrect. Post , at 12. For present purposes, it is unnecessary to adjudicate this dispute. Even if RFRA simply restored the status quo ante, there is no reason to believe, as HHS and the dissent seem to suggest, that the la w was meant to be limited to situa

tions that fall squarely within the holdings of pre- Smith cases. See infra , at 25–28.18 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

in the next part of this opinion, reveals that Congress did no such thing. As we will show, Congress prov ided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An estab

lished body of law specifies the rights and obligations of
the people (including shareholders, officers, and employ

ees) who are associated with a corporation in one way oranother. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government sei

zure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies. In holding that Conestoga, as a “secular, for-profit cor

poration,” lacks RFRA protection, the Third Circuit wrote
as follows:

“General business corporations do not, separate andapart 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.” 724 F. 3d, at 385 (emphasis added).

All of this is true—but quite beside the point. Corpora

-19 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

tions, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything
at all.

B

1
As we noted above, RFRA applies to “a person’s” exer

cise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n deter

mining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1. Under the Dictionary Act, “the wor[d] ‘person’ . . . in

clude[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well
as individuals.” Ibid. ; see FCC v. AT&T Inc. , 562 U. S. ___, ___ (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard. We see nothing in RFRA that suggests a congressional intent to depart from the Dictionary Act definition, and HHS makes little effort to argue otherwise. We have entertained RFRA and free-exercise claims brought by nonprofit corporations, see Gonzales v. O Centro Espírita Beneficiente União do Vegetal , 546 U. S. 418 (2006) (RFRA); Hosanna-Tabor Evangelical Lutheran Church
and School v. EEOC , 565 U. S. ___ (2012) (Free Exercise); Church of the Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.
S. 520 (1993) (Free Exercise), and HHS concedes that a nonprofit corporation can be a “person” within the mean

ing of RFRA. See Brief for HHS in No. 13–354, at 17;20 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

Reply Brief in No. 13–354, at 7–8. 19 This concession effectively dispatches any argument that the term “person” as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term “person” includes some but not all corporations. The term “person” sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons.
But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations. 20 Cf. Clark v. Martinez , 543 U. S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one”).

2
The principal argument advanced by HHS and the principal dissent regarding RFRA protection for Hobby Lobby, Conestoga, and Mardel focuses not on the statutory term “person,” but on the phrase “exercise of religion.” According to HHS and the dissent, these corporations are not protected by RFRA because they cannot exercise reli

gion. Neither HHS nor the dissent, however, provides any persuasive explanation for this conclusion. Is it because of the corporate form? The corporate form alone cannot provide the explanation because, as we have pointed out, HHS concedes that nonprofit corporations can

——————

19 Cf. Brief for Federal Petitioners in O Centro , O. T. 2004, No. 04– 1084, p. II (stating that the organizational respondent was “a New Mexico Corporation”); Brief for Federal Respondent in Hosanna-Tabor

, O. T. 2011, No. 10–553, p. 3 (stating that the petitioner was an “ecclesi

astical corporation”).

20 Not only does the Government conc ede that the term “persons” in RFRA includes nonprofit corporations, it goes further and appears to concede that the term might also encompass other artificial entities, namely, general partnerships and unincorporated associations. See Brief for HHS in No. 13–354, at 28, 40.21 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

be protected by RFRA. The dissent suggests that nonprofit corporations are special because furthering their reli

gious “autonomy . . . often furthers individual religious
freedom as well.” Post , at 15 (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day
Saints v. Amos , 483 U. S. 327, 342 (1987) (Brennan, J., concurring in judgment)). But this principle appliesequally to for-profit corporations: Furthering their religious freedom also “furthers individual religious freedom.” In these cases, for example, allowing Hobby Lobby, Con

estoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns. 21 If the corporate form is not enough, what about the profit-making objective? In Braunfeld , 366 U. S. 599, we
entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims. As the Court explained in a later case, the “exercise of religion” involves “not only belief and profes

sion but the performance of (or abstention from) physical acts” that are “engaged in for religious reasons.” Smith

, 494 U. S., at 877. Business practices that are compelled or limited by the tenets of a religious doctrine fall comforta

bly within that definition. Thus, a law that “operates so as to make the practice of . . . religious beliefs more expen

sive” in the context of busine ss activities imposes a burden on the exercise of religion. Braunfeld

, supra , at 605; see
United States v. Lee , 455 U. S. 252, 257 (1982) (recognizing that “compulsory participation in the social security sys

tem interferes with [Amish employers’] free exercise

——————

21 Although the principal dissent se ems to think that Justice Bren

nan’s statement in Amos provides a ground for holding that for-profit corporations may not assert free-exer cise claims, that was not Justice
Brennan’s view. See Gallagher v. Crown Kosher Super Market of Mass., Inc. , 366 U. S. 617, 642 (1961) (dissenting opinion); infra , at 26–

27.22 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

rights”). If, as Braunfeld recognized, a sole proprietorship that seeks to make a profit may assert a free-exercise claim, 22 why can’t Hobby Lobby, Conestoga, and Mardel do the
same? Some lower court judges have suggested that RFRA does not protect for-profit corporations because the pur

pose of such corporations is simply to make money. 23 This

——————

22 It is revealing that the principal dissent cannot even bring itself to acknowledge that Braunfeld was correct in entertaining the merchants’
claims. See post, at 19 (dismissing the relevance of Braunfeld in part because “[t]he free exercise claim as serted there was promptly rejected on the merits”).

23 See, e.g ., 724 F. 3d, at 385 (“We do not see how a for-profit, ‘artifi

cial being,’ . . . that was created to make money” could exercise reli

gion); Grote v. Sebelius , 708 F. 3d 850, 857 (CA7 2013) (Rovner, J. dissenting) (“So far as it appears, the mission of Grote Industries, like that of any other for-profit, secular business, is to make money in the commercial sphere”); Autocam Corp. v. Sebelius , 730 F. 3d 618, 626 (CA7 2013) (“Congress did not intend to include corporations primarily organized for secular, profit-seek ing purposes as ‘persons’ under RFRA”); see also 723 F. 3d, at 1171–1172 (Briscoe, C. J., dissenting) (“[T]he specific purpose for which [a corporation] is created matters greatly to how it will be categorize d and treated under the law” and “it is undisputed that Hobby Lobby and Mardel are for-profit corporations focused on selling merchandise to consumers”).

The principal dissent makes a simila r point, stating that “[f]or-profit corporations are different from religious nonprofits in that they use labor to make a profit, rather than to perpetuate the religious values shared by a community of believers.” Post , at 18–19 (internal quotation marks omitted). The first half of this statement is a tautology; for

profit corporations do indeed differ fr om nonprofits insofar as they seek to make a profit for their owners, but the second part is factually
untrue. As the activities of the for- profit corporations involved in these cases show, some for-profit corporations do seek “to perpetuate the religious values shared,” in these ca ses, by their owners. Conestoga’s
Vision and Values Statem ent declares that the company is dedicated to operating “in [a] manner that reflects our Christian heritage and the highest ethical and moral principles of business.” App. in No. 13–356,

p. 94. Similarly, Hobby Lobby’s statement of purpose proclaims that the company “is committed to . . . Honoring the Lord in all we do by23 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

argument flies in the face of modern corporate law. “Each American jurisdiction today either expressly or by implica

tion authorizes corporations to be formed under its general corporation act for any lawful purpose or business.” 1 J. Cox & T. Hazen, Treatise of the Law of Corporations §4:1,

p. 224 (3d ed. 2010) (emphasis added); see 1A W. Fletcher, Cyclopedia of the Law of Corporations §102 (rev. ed. 2010). While it is certainly true that a central objective of for

profit corporations is to make money, modern corporate law does not require for-prof it corporations to pursue profit at the expense of ever ything else, and many do not do so. For-profit corporatio ns, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitar

ian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy

conservation measures that go beyond what the law re

quires. A for-profit corporatio n that operates facilities in other countries may exceed the requirements of local law regarding working conditions an d benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well. HHS would draw a sharp line between nonprofit corpo

-

—————— operating . . . in a manner consistent wi th Biblical principles.” App. in No. 13–354, p. 135. The dissent also believes that history is not on our side because even Blackstone recognized the distinction between “ecclesiastical and lay” corporations. Post , at 18. What Blackstone illustrates, however, is that dating back to 1765, there was no sharp divide among corporations in their ca pacity to exercise religion; Black

stone recognized that even what he termed “lay” corporations might serve “the promotion of piety.” 1 W. Blackstone, Commentaries on the Law of England 458–459 (1765). And whatever may have been the case at the time of Blackstone, modern corporate law (and the law of the States in which these three compan ies are incorporated) allows for

profit corporations to “per petuat[e] religious values.”24 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

rations (which, HHS concedes, are protected by RFRA) and for-profit corporations (which HHS would leave un

protected), but the actual picture is less clear-cut. Not all corporations that decline to org anize as nonprofits do so in order to maximize profit. For example, organizations with religious and charitable aims might organize as for-profit corporations because of the po tential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candi

dates who promote their religious or charitable goals. 24 In fact, recognizing the inherent compatibility between estab

lishing a for-profit corporation and pursuing nonprofit goals, States have increasingly adopted laws formally recognizing hybrid corporate forms. Over half of the States, for instance, now recognize the “benefit corpora

tion,” a dual-purpose entity that seeks to achieve both a benefit for the public and a profit for its owners. 25 In any event, the objectives that may properly be pur

-

——————

24 See, e.g. , M. Sanders, Joint Ventures Involving Tax-Exempt Organ

izations 555 (4th ed. 2013) (describing Google.org, which “advance[s] its charitable goals” while operating as a for-profit corporation to be able to “invest in for-profit ende avors, lobby for policies that support its philan

thropic goals, and tap Google’s i nnovative technology and workforce” (internal quotation marks and alterations omitted)); cf. 26 CFR §1.501(c)(3)–1(c)(3).

25 See Benefit Corp Information Center, online at http:// www.benefitcorp.net/state-by-state-legislative-status ; e.g. , Va. Code Ann. §§13.1–787, 13.1–626, 13.1–782 (Lexis 2011) (“A benefit corpora

tion shall have as one of its purpos es the purpose of creating a general public benefit,” and “may identify on e or more specific public benefits that it is the purpose of the benefit corporation to create. . . . This purpose is in addition to [the purp ose of engaging in any lawful busi

ness].” “ ‘Specific public benefit’ means a benefit that serves one or more public welfare, religious, charit able, scientific, literary, or educa

tional purposes, or other purpose or be nefit beyond the strict interest of the shareholders of the benefit corpor ation . . . .”); S. C. Code Ann. §§33–38–300 (2012 Cum. Supp.), 33–3–101 (2006), 33–38–130 (2012 Cum. Supp.) (similar).25 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

sued by the companies in these cases are governed by the laws of the States in which they were incorporated— Pennsylvania and Oklahoma—and the laws of those States permit for-profit corporations to pursue “any lawful purpose” or “act,” including the pursuit of profit in con

formity with the owners’ religious principles. 15 Pa. Cons. Stat. §1301 (2001) (“Corporations may be incorporated under this subpart for any lawful purpose or purposes”); Okla. Stat., Tit. 18, §§1002, 1005 (West 2012) (“[E]very corporation, whether profit or not for profit” may “be incorporated or organized . . . to conduct or promote any lawful business or purposes”); see also §1006(A)(3); Brief
for State of Oklahoma as Amicus Curiae in No. 13–354.

3
HHS and the principal dissent make one additional argument in an effort to show that a for-profit corporation cannot engage in the “exercise of religion” within the meaning of RFRA: HHS argues that RFRA did no more than codify this Court’s pre- Smith Free Exercise Clause precedents, and because none of those cases squarely held that a for-profit corporation has free-exercise rights, RFRA does not confer such protection. This argument has many
flaws. First, nothing in the text of RFRA as originally enacted suggested that the statutory phrase “exercise of religion
under the First Amendment” was meant to be tied to this Court’s pre- Smith interpretation of that Amendment. When first enacted, RFRA defined the “exercise of reli

gion” to mean “the exercise of religion under the First Amendment”—not the exercise of religion as recognized only by then-existing Supreme Court precedents. 42

U. S. C. §2000bb–2(4) (1994 ed.). When Congress wants to link the meaning of a statutory provision to a body of this Court’s case law, it knows how to do so. See, e.g. , Antiter

rorism and Effective Death Penalty Act of 1996, 2826 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

U. S. C. §2254(d)(1) (authorizing habeas relief from a state-court decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”). Second, if the original text of RFRA was not clear enough on this point—and we think it was—the amend

ment of RFRA through RLUIPA surely dispels any doubt. That amendment deleted the prior reference to the First Amendment, see 42 U. S. C. §2000bb–2(4) (2000 ed.) (in

corporating §2000cc–5), and neither HHS nor the principal dissent can explain why Congress did this if it wanted to tie RFRA coverage tightly to the specific holdings of our

pre- Smith free-exercise cases. Moreover, as discussed, the amendment went further, providing that the exercise of religion “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc– 3(g). It is simply not possible to read these provisions as restricting the concept of the “e xercise of religion” to those practices specifically addressed in our pre- Smith decisions. Third, the one pre- Smith case involving the free-exercise rights of a for-profit corporation suggests, if anything, that for-profit corporations possess such rights. In Gallagher v. Crown Kosher Super Market of Mass., Inc. , 366 U. S. 617 (1961), the Massachusetts Sunday closing law was chal

lenged by a kosher market that was organized as a for

profit corporation, by custom ers of the market, and by a rabbi. The Commonwealth argued that the corporation lacked “standing” to assert a free-exercise claim, 26 but not one member of the Court expressed agreement with that

——————

26 See Brief for Appellants in Gallagher , O. T. 1960 No. 11, pp. 16, 28– 31 (arguing that corporation “has no ‘religious belief’ or ‘religious liberty,’ and had no standi ng in court to assert th at its free exercise of religion was impaired”).27 Cite as: 573 U. S. ____ (2014)

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argument. The plurality opinion for four Justices rejected
the First Amendment claim on the merits based on the reasoning in Braunfeld , and reserved decision on the question whether the corporation had “standing” to raise the claim. See 366 U. S., at 631. The three dissenters, Justices Douglas, Brennan, and Stewart, found the law unconstitutional as applied to the corporation and the other challengers and thus im plicitly recognized their right to assert a free-exercise claim. See id. , at 642 (Bren

nan, J., joined by Stewart, J., dissenting); McGowan v. Maryland , 366 U. S. 420, 578–579 (1961) (Douglas, J., dissenting as to related cases including Gallagher ). Fi

nally, Justice Frankfurter’s opinion, which was joined by Justice Harlan, upheld the Massachusetts law on the merits but did not question or reserve decision on the issue of the right of the corporation or any of the other challengers to be heard. See McGowan , 366 U. S., at 521–

522. It is quite a stretch to argue that RFRA, a law enacted to provide very broad protection for religious liberty, left for-profit corporations unprotected simply because in Gallagher —the only pre- Smith case in which the issue was raised—a majority of the Justices did not find it nec

essary to decide whether the kosher market’s corporate status barred it from raising a free-exercise claim. Finally, the results would be absurd if RFRA merely restored this Court’s pre- Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre- Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protec

tive reach simply because the Court never addressed their rights before Smith ? Presumably in recognition of the weakness of this ar

-28 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

gument, both HHS and the principal dissent fall back on
the broader contention that the Nation lacks a tradition of exempting for-profit corporat ions from generally applica

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

——————

27 The principal dissent points out th at “the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage.”

Post , at 16, n. 15. The dissent takes this to mean that RFRA did not, in fact, “ope[n] all statutory schemes to religion-based challenges by for

profit corporations” because if it had “there would be no need for a statute-specific, post-RFRA ex emption of this sort.” Ibid

.

This argument fails to recognize that the protecti on provided by §238n(a) differs significantly from the protection provided by RFRA. Section 238n(a) flatly prohibits discrimination against a covered healthcare facility for refusing to enga ge in certain activities related to
abortion. If a covered healthcare facility challenged such discrimina

tion under RFRA, by contrast, the discrimination would be unlawful only if a court concluded, among other things, that there was a less restrictive means of achieving any compelling government interest.

In addition, the dissent’s argu ment proves too much. Section 238n(a) applies evenly to “any health care entity”—whether it is a religious nonprofit entity or a for-prof it entity. There is no dispute that RFRA protects religious nonprofit corporations, so if §238n(a) were redundant as applied to for-profit corporations, it would be equally redundant as applied to nonprofits.29 Cite as: 573 U. S. ____ (2014)

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4
Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HH S goes so far as to raise the specter of “divisive, polarizing proxy battles over the reli

gious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 13–356,

at 30. These cases, however, do not involve publicly traded corporations, and it seems un likely that the sort of corpo

rate giants to which HHS re fers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occur

ring. For example, the idea that unrelated shareholders— including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s ap

plicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs. 28 HHS has also provided no evidence that the purported problem of determining the sincerity of an asserted reli

gious belief moved Congress to exclude for-profit corpora

tions from RFRA’s protection. On the contrary, the scope of RLUIPA shows that Congress was confident of the ability of the federal courts to weed out insincere claims. RLUIPA applies to “institutionalized persons,” a category

——————

28 To qualify for RFRA’s protection, an asserted belief must be “sin

cere”; a corporation’s pretextual asse rtion of a religious belief in order to obtain an exemption for fina ncial reasons would fail. Cf., e.g ., United
States v. Quaintance , 608 F. 3d 717, 718–719 (CA10 2010).30 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

that consists primarily of pr isoners, and by the time of RLUIPA’s enactment, the propensity of some prisoners to assert claims of dubious sincerity was well documented. 29 Nevertheless, after our decision in City of Boerne , Con

gress enacted RLUIPA to preserve the right of prisoners to raise religious liberty claims. If Congress thought that the federal courts were up to the job of dealing with insincere prisoner claims, there is no reason to believe that Con

gress limited RFRA’s reach out of concern for the seemingly less difficult task of doing the same in corporate cases. And if, as HHS seems to concede, Congress wanted RFRA to apply to nonprofit co rporations, see, Reply Brief in No. 13–354, at 7–8, what reason is there to think that Congress believed that spotting insincere claims would be tougher in cases involving for-profits? HHS and the principal dissent express concern about the possibility of disputes among the owners of corpora

tions, but that is not a problem that arises because of RFRA or that is unique to this context. The owners of closely held corporations may—and sometimes do— disagree about the conduct of business. 1 Treatise of the Law of Corporations §14:11. And even if RFRA did not exist, the owners of a company might well have a dispute relating to religion. For example, some might want a company’s stores to remain open on the Sabbath in order to make more money, and others might want the stores to close for religious reasons. State corporate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. See, e.g. , ibid; id. , §3:2; Del. Code Ann., Tit. 8, §351 (2011) (providing that certificate of incorporation

——————

29 See, e.g. , Ochs v. Thalacker , 90 F. 3d 293, 296 (CA8 1996); Green v. White , 525 F. Supp. 81, 83–84 (ED Mo. 1981); Abate v. Walton , 1996 WL 5320, *5 (CA9, Jan. 5, 1996); Winters v. State , 549 N. W. 2d 819– 820 (Iowa 1996).31 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

may provide how “the business of the corporation shall be managed”). Courts will turn to that structure and the underlying state law in resolving disputes. For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA. 30

IV
Because RFRA applies in these cases, we must next ask whether the HHS contraceptive mandate “substantially burden[s]” the exercise of religion. 42 U. S. C. §2000bb– 1(a). We have little trouble concluding that it does.

——————

30 The principal dissent attaches sign ificance to the fact that the “Senate voted down [a] so-called ‘c onscience amendment,’ which would have enabled any employer or insu rance provider to deny coverage based on its asserted religious beliefs or moral convictions.” Post , at 6. The dissent would evidently glean fr om that vote an intent by the Senate to prohibit for-profit corpor ate employers from refusing to offer contraceptive coverage for religious reasons, regardless of whether the contraceptive mandate could pass muster under RFRA’s standards. But that is not the only plausibl e inference from the failed amend

ment—or even the most likely. For one thing, the text of the amend

ment was “written so broadly that it would allow any employer to deny any health service to any American for virtually any reason— not just for religious objections .” 158 Cong. Rec. S1165 (Mar. 1, 2012) (emphasis added). Moreover, the amendment would have authorized a blanket exemption for religious or moral obje ctors; it would not have subjected religious-based objections to the judicial scrutiny called for by RFRA, in which a court must consider not only the burden of a requirement on religious adherents, but also the government’s interest and how nar

rowly tailored the requirement is. It is thus perfectly reasonable to
believe that the amendment was vote d down because it extended more broadly than the pre-exis ting protections of RFRA. And in any event, even if a rejected amendment to a bill could be relevant in other con

texts, it surely cannot be relevant here, because any “Federal statutory law adopted after November 16, 1993 is subject to [RFRA] unless such
law explicitly excludes such application by reference to [RFRA].” 42

U. S. C. §2000bb–3(b) (emphasis added). It is not plausible to find such an explicit reference in the meager legislative history on which the
dissent relies.32 BURWELL v. HOBBY LOBBY STORES, INC.

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A
As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They there

fore object on religious ground s to providing health insur

ance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious
beliefs. If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual. 26

U. S. C. §4980D. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial. It is true that the plaintiffs could avoid these assess

ments by dropping insurance coverage altogether and thus forcing their employees to obtain health insurance on one of the exchanges established under ACA. But if at least one of their full-time employees were to qualify for a sub

sidy on one of the government-run exchanges, this course would also entail substantial economic consequences. The companies could face penalties of $2,000 per employee each year. §4980H. These penalties would amount to roughly $26 million for Ho bby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel.

B
Although these totals are high, amici supporting HHS33 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

have suggested that the $2,000 per-employee penalty is actually less than the average cost of providing health insurance, see Brief for Religious Organizations 22, and therefore, they claim, the companies could readily elimi

nate any substantial burden by forcing their employees to obtain insurance in the government exchanges. We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, see United Parcel Service, Inc. v. Mitchell , 451 U. S. 56, 60,

n. 2 (1981); Bell v. Wolfish , 441 U. S. 520, 532, n. 13 (1979); Knetsch v. United States , 364 U. S. 361, 370 (1960), and there are strong reasons to adhere to that practice in these cases. HHS, which presumably could have compiled the relevant statistics, has never made this argument— not in its voluminous briefing or at oral argument in this Court nor, to our knowledge, in any of the numerous cases in which the issue now before us has been litigated around the country. As things now stand, we do not even know what the Government’s position might be with respect to
these amici’s intensely empirical argument. 31 For this same reason, the plaintiffs have never had an opportunity to respond to this novel cl aim that—contrary to their longstanding practice and that of most large employers— they would be better off discarding their employer insur

ance plans altogether.
Even if we were to reach th is argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies have religious reasons for providing health-insurance coverage for their employees. Before the advent of ACA, they were not legally compelled to provide insurance, but they never

theless did so—in part, no do ubt, for conventional business

——————

31 Indeed, one of HHS’s stated reason s for establishing the religious accommodation was to “encourag[e] eligible organizations to continue to offer health coverage.” 78 Fed. Reg. 39882 (2013) (emphasis added).34 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

reasons, but also in part because their religious beliefs govern their relations with their employees. See App. to Pet. for Cert. in No. 13–356, p. 11g; App. in No. 13–354,

at 139. Putting aside the religious dimension of the decision to provide insurance, moreover, it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty. Health insurance is a benefit that em

ployees value. If the companies simply eliminated that benefit and forced employees to purchase their own insur

ance on the exchanges, without offering additional com

pensation, it is predictable that the companies would face a competitive disadvantage in retaining and attracting skilled workers. See App. in No. 13–354, at 153. The companies could attempt to make up for the elimi

nation of a group health plan by increasing wages, but this would be costly. Group health insurance is generally less expensive than comparable individual coverage, so the amount of the salary increase needed to fully compensate for the termination of insurance coverage may well exceed the cost to the companies of providing the insurance. In addition, any salary increase would have to take into account the fact that employees must pay income taxes on wages but not on the value of employer-provided health insurance. 26 U. S. C. §106(a). Likewise, employers can deduct the cost of providing health insurance, see §162(a)(1), but apparently cannot deduct the amount ofthe penalty that they must pay if insurance is not provided; that difference also mu st be taken into account. Given these economic incentives, it is far from clear that it would be financially advantageous for an employer to drop coverage and pay the penalty. 32

——————

32 Attempting to compensate for dropped insurance by raising wages would also present administrative diffi culties. In order to provide full35 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

In sum, we refuse to sustain the challenged regulations on the ground—never maintained by the Government— that dropping insurance coverage eliminates the substan

tial burden that the HHS mandate imposes. We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sin

cerely held religious beliefs or making all of their employ

ees lose their existing healthcare plans.

C
In taking the position that the HHS mandate does not impose a substantial burden on the exercise of religion, HHS’s main argument (echoed by the principal dissent) is basically that the connection between what the objecting parties must do (provide health-insurance coverage for four methods of contraception that may operate after the fertilization of an egg) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated. Brief for HHS in 13–354, pp. 31–34; post , at 22–23. HHS and the dissent note that providing the coverage would not itself result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four meth

ods at issue. 33 Ibid.

—————— compensation for employees, the comp anies would have to calculate the value to employees of the convenie nce of retaining their employer

provided coverage and thus being spared the task of attempting to find and sign up for a comparable plan on an exchange. And because some but not all of the companies’ employ ees may qualify for subsidies on an exchange, it would be nearly impossible to calculate a salary increase that would accurately restore the status quo ante for all employees.

33 This argument is not easy to sq uare with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers, such as churches, that have the very same reli

gious objections as the Hahns and Greens and their companies. The connection between what these religio us employers would be required36 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business
in accordance with their religious beliefs ) and instead addresses a very different quest ion that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. 34 Arrogating the authority to provide a binding national answer to this religious and philosophical que stion, HHS and the princi

-

—————— to do if not exempted (provide insurance coverage for particular contra

ceptives) and the ultimate event that they find morally wrong (destruc

tion of an embryo) is exactly the same. Nevertheless, as discussed, HHS and the Labor and Treasury De partments authorized the exemp

tion from the contraceptive mandate of group health plans of certain religious employers, and later expanded the exemption to include certain nonprofit organizations with religious objections to contracep

tive coverage. 78 Fed. Reg. 39871. When this was done, the Govern

ment made clear that its objective was to “protec[t]” these religious objectors “from having to contract, arrange, pay, or refer for such coverage.” Ibid . Those exemptions would be hard to understand if the plaintiffs’ objections here were not substantial.

34 See, e.g ., Oderberg, The Ethics of Co-o peration in Wrongdoing, in Modern Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins, Man as Man: The Science and Art of Ethics 353, 355 (1949) (“The general principles governing cooperation” in wrongdoing— i.e ., “physical activity (or its omission) by which a person assists in the evil act of another who is the principal agent”—“present troublesome difficulties in application”); 1 H. Davis, Moral and Pastoral Theology 341 (1935) (Cooperation occurs “when A helps B to accomplish an external act by an act that is not sinful, and wi thout approving of what B does”).37 Cite as: 573 U. S. ____ (2014)

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pal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step. See, e.g ., Smith , 494 U. S., at 887 (“Re

peatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausi

bility of a religious claim”); Hernandez v. Commissioner

, 490 U. S. 680, 699 (1989); Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church

, 393 U. S. 440, 450 (1969). Moreover, in Thomas v. Review Bd. of Indiana Employment Security Div. , 450 U. S. 707 (1981), we considered and rejected an argument that is nearly identical to the one now urged by HHS and the dissent. In Thomas

, a Jehovah’s Witness was initially employed making sheet steel for a variety of industrial uses, but he was later transferred to a job making turrets for tanks. Id., at 710. Because he objected on religio us grounds to participating in the manufacture of weapons, he lost his job and sought unemployment compensation. Ruling against the em

ployee, the state court had difficulty with the line thatthe employee drew between work that he found to be consistent with his religious beliefs (helping to manufacture steel that was used in making weapons) and work that he found morally objectionable (helping to make the weapons themselves). This Court, howe ver, held that “it is not for us to say that the line he drew was an unreasonable one.”
Id. , at 715. 35 Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the in

surance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function . . . in this context is to

——————

35 The principal dissent makes no effort to reconcile its view about the substantial-burden requirem ent with our decision in Thomas

.38 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

determine” whether the line drawn reflects “an honest conviction,” id ., at 716, and there is no dispute that it
does. HHS nevertheless compares these cases to decisions in which we rejected the argument that the use of general tax revenue to subsidize the secular activities of religious
institutions violated the Free Exercise Clause. See Tilton

v. Richardson , 403 U. S. 672, 689 (1971) (plurality); Board of Ed. of Central School Dist. No. 1 v. Allen , 392 U. S. 236, 248–249 (1968). But in those cases, while the subsidies were clearly contrary to the challengers’ views on a secu

lar issue, namely, proper church-state relations, the chal

lengers never articulated a religious objection to the sub

sidies. As we put it in Tilton , they were “unable to identify any coercion directed at the practice or exercise of their religious beliefs.” 403 U. S., at 689 (plurality opin

ion); see Allen

, supra , at 249 (“[A]ppellants have not con

tended that the New York law in any way coerces them as individuals in the practice of their religion”). Here, in contrast, the plaintiffs do assert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity. Be

cause the contraceptive mandate forces them to pay an enormous sum of money—as much as $475 million per year in the case of Hobby Lobby—if they insist on provid

ing insurance coverage in acco rdance with their religious beliefs, the mandate clearly imposes a substantial burden
on those beliefs.

V
Since the HHS contraceptive mandate imposes a sub

stantial burden on the exercise of religion, we must move
on and decide whether HHS has shown that the mandate both “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of further

ing that compelling governmental interest.” 42 U. S. C.39 Cite as: 573 U. S. ____ (2014)

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§2000bb–1(b).

A
HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting “public health” and “gender equality.” Brief for HHS in No. 13– 354, at 46, 49. RFRA, however, contemplates a “more focused” inquiry: It “require s the Government to demon

strate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O’Centro , 546 U. S., at 430–431 (quoting §2000bb–1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scru

tiniz[e] the asserted harm of granting specific exemptions to particular religious claimant s”—in other words, to look to the marginal interest in enforcing the contraceptive
mandate in these cases. O Centro

, supra , at 431. In addition to asserting these very broadly framed interests, HHS maintains that the mandate serves a compelling interest in ensuring that all women have ac

cess to all FDA-approved co ntraceptives without cost sharing. See Brief for HHS in No. 13–354, at 14–15, 49; see Brief for HHS in No. 13–356, at 10, 48. Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v. Connecticut , 381
U. S. 479, 485–486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13–354, at 50 (internal quotation marks omitted). The objecting parties contend that HHS has not shown
that the mandate serves a compelling government inter

est, and it is arguable that there are features of ACA that support that view. As we have noted, many employees—40 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

those covered by grandfathered plans and those who work for employers with fewer than 50 employees—may have no contraceptive coverage without cost sharing at all. HHS responds that many legal requirements have exceptions and the existence of exceptions does not in itself indicate that the principal interest served by a law is not compelling. Even a compelling interest may be out

weighed in some circumstances by another even weightier consideration. In these cases, however, the interest served by one of the biggest exceptions, the exception for grandfa

thered plans, is simply the interest of employers in avoid

ing the inconvenience of amending an existing plan. Grandfathered plans are required “to comply with a subset of the Affordable Care Act’s health reform provisions” that provide what HHS has described as “particularly signifi

cant protections.” 75 Fed. Reg. 34540 (2010). But the contraceptive mandate is expr essly excluded from this

subset. Ibid

. We find it unnecessary to adju dicate this issue. We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to con

sider the final prong of the RFRA test, i.e. , whether HHS has shown that the contraceptive mandate is “the least
restrictive means of further ing that compelling govern

mental interest.” §2000bb–1(b)(2).

B
The least-restrictive-means standard is exceptionally demanding, see City of Boerne , 521 U. S., at 532, and it is
not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the ob

jecting parties in these cases. See §§2000bb–1(a), (b) (requiring the Government to “demonstrat[e] that applica

tion of [a substantial] burden to the person . . . is the least41 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

restrictive means of furthering [a] compelling governmen

tal interest” (emphasis added)). The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious obje ctions. This would certainly be less restrictive of the pl aintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative. HHS has not provided any estimate of the average cost per employee of providing access to these contraceptives, two of which, according to the FDA, are designed primarily for emergency use. See Birth Control: Medicines to Help You, online at http:// www.fda.gov/forconsumers/byaudience/forwomen/freepubli cations/ucm313215.htm. Nor has HHS provided any statistics regarding the number of employees who might be affected because they work for corporations like Hobby Lobby, Conestoga, and Mardel. Nor has HHS told us that it is unable to provide such statistics. It seems likely, however, that the cost of providing the forms of contracep

tives at issue in these cases (if not all FDA-approved contraceptives) would be mino r when compared with the overall cost of ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance

coverage provisions will co st the Federal Government more than $1.3 trillion through the next decade. See CBO, Updated Estimates of the Effects of the Insurance Cover

age Provisions of the Affordable Care Act, April 2014, p.

2. 36 If, as HHS tells us, provid ing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument t hat it cannot be required under RFRA to pay anything in order to achieve this

——————

36 Online at http://cbo.g ov/publication/45231

.42 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

important goal. HHS contends that RFRA does not permit us to take this option into account because “RFRA cannot be used to require creation of entirely new programs.” Brief for HHS in 13–354, at 15. 37 But we see nothing in RFRA that supports this argument, and drawing the line between the “creation of an entirely new program” and the modification of an existing program (which RFRA surely allows) would be fraught with problems. We do not doubt that cost may

——————

37 In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens conf er a benefit on other individuals. It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on
nonbeneficiaries.” Cutter v. Wilkinson , 544 U. S. 709, 720 (2005) (applying RLUIPA). That considerat ion will often inform the analysis of the Government’s compelling intere st and the availability of a less restrictive means of advancing that interest. But it could not reasona

bly be maintained that any burden on religious exercise, no matter how onerous and no matter how readily the government interest could be achieved through alternative means, is permissible under RFRA so long as the relevant legal obligation requir es the religious adherent to confer a benefit on third parties. Otherw ise, for example, the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owning restaurants). By framing any Government regulation as benefiting a third party, the Government could turn all regulations into entitle

ments to which nobody could object on religious grounds, rendering RFRA meaningless. In any event, ou r decision in these cases need not result in any detrimental effect on an y third party. As we explain, see infra , at 43–44, the Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees who are
unable to obtain them under their he alth-insurance plans due to their employers’ religious objections.43 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: “[T]his chapter may require a government to incur expenses in its own opera

tions to avoid imposing a substantial burden on religious exercise.”). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law. In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means
test. HHS itself has demonstrated that it has at its dis

posal an approach that is less restrictive than requiring employers to fund contraceptiv e methods that violate their religious beliefs. As we ex plained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See supra , at 9–10, and nn. 8–9. Under that accommodation, the organization can self

certify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1); 26 CFR §§54.9815–2713A(a)(4), (b). If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services require d to be covered” without imposing “any cost-sharing requirements . . . on the eligi

ble organization, the group health plan, or plan partici

pants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR § 54.9815–2713A(c)(2). 38

——————

38 HHS has concluded that insurers that insure elig ible employers44 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

We do not decide today whet her an approach of this type complies with RFRA for purposes of all religious claims. 39 At a minimum, however, it does not impinge on the plain

tiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and
it serves HHS’s stated interests equally well. 40 The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and
there is none. 41 Under the accommodation, the plaintiffs’ female employees would conti nue to receive contraceptive coverage without cost sharing for all FDA-approved con

traceptives, and they would continue to “face minimal

—————— opting out of the contraceptive mand ate and that are required to pay for contraceptive coverage under th e accommodation will not experience an increase in costs because the “costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. 39877. With respect to self-insured plans, the regulations establish a mecha

nism for the eligible employers’ thir d-party administrators to obtain a compensating reduction in the fee paid by insurers to participate in the federally facilitated exchanges. HHS believes that this system will not
have a material effect on the f unding of the exchanges because the “payments for contraceptive services will represent only a small portion of total [federally facilitate d exchange] user fees.” Id., at 39882; see 26 CFR §54.9815–2713A(b)(3).

39 See n. 9, supra

. 40 The principal dissent faults us fo r being “noncommita l” in refusing
to decide a case that is not before us here. Post , at 30. The less restrictive approach we describe accommodates the religious beliefs as

serted in these cases, and that is the only question we are permitted
to address.

41 In the principal dissent’s view, the Government has not had a fair opportunity to address this accommodation, post , at 30. n. 27, but the Government itself apparently believes that when it “provides an excep

tion to a general rule for secular reasons (or for only certain religious reasons), [it] must explain why extending a comparable exception to a specific plaintiff for religious re asons would undermine its compelling
interests.” Brief for the United States as Amicus Curiae in Holt v. Hobbs , No. 13–6827, p. 10, now pending before the Court.45 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

logistical and administrative obstacles,” post , at 28 (inter

nal quotation marks omitted) , because their employers’ insurers would be responsible for providing information and coverage, see, e.g. , 45 CFR §§147.131(c)–(d); cf. 26 CFR §§54.9815–2713A(b), (d). Ironically, it is the dissent’s approach that would “[i]mped[e] women’s receipt of bene

fits by ‘requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit,’ ” post , at 28, because the dissent would effectively compel religious employers to drop health

insurance coverage altogether, leaving their employees to find individual plans on government-run exchanges or elsewhere. This is indeed “scarcely what Congress con

templated.” Ibid.

C
HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to sub

stantiate this prediction. 42 HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employ

ers sought exemption, on relig ious grounds, from any of ACA’s coverage requirements other than the contraceptive
mandate. It is HHS’s apparent belief that no insurance-coverage
mandate would violate RFRA—n o matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all

——————

42 Cf. 42 U. S. C. §1396s (Federal “program for distribution of pediat

ric vaccines” for some uninsured and underinsured children).46 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for in

stance, third-trimester abortions or assisted suicide. The owners of many closely held co rporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in
the economic life of the Nation. RFRA was enacted to prevent such an outcome. In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision
should not be understood to hold that an insurance

coverage mandate must necessar ily fall if it conflicts with an employer’s religious beliefs . Other coverage require

ments, such as immunizations, may be supported by dif

ferent interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing

them. The principal dissent raises the possibility that discrim

ination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction.
See post , at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the work

force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that criti

cal goal.
HHS also raises for the fi rst time in this Court the argument that applying the contraceptive mandate to for

profit employers with sincere religious objections is essen

tial to the comprehensive health-insurance scheme that ACA establishes. HHS analogizes the contraceptive man

date to the requirement to pay Social Security taxes, which we upheld in Lee despite the religious objection of an employer, but these cases are quite different. Our holding in Lee turned primarily on the special problems47 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

associated with a national system of taxation. We noted that “[t]he obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes.” 455 U. S., at 260. Based on that premise, we explained that it was untenable to allow individuals to seek exemptions from taxes based on religious objections to particular Government expend itures: “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as de

voted to war-related activiti es, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.” Ibid. We observed that “[t]he tax system could not f unction if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious be

lief.” Ibid. ; see O Centro , 546 U. S., at 435.

Lee was a free-exercise, not a RFRA, case, but if the
issue in Lee were analyzed under the RFRA framework, the fundamental point would be that there simply is no
less restrictive alternative to the categorical requirement to pay taxes. Because of th e enormous variety of govern

ment expenditures funded by tax dollars, allowing taxpayers to withhold a portion of their tax obligations on religious grounds would lead to chaos. Recognizing exemptions from the contraceptive mandate is very differ

ent. ACA does not create a large national pool of tax revenue for use in purchasing healthcare coverage. Ra

ther, individual employers like the plaintiffs purchase insurance for their own employees. And contrary to the principal dissent’s characterization, the employers’ contri

butions do not necessarily funnel into “undifferentiated
funds.” Post , at 23. The accommodation established by HHS requires issuers to have a mechanism by which to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 45 CFR §147.131(c)(2)(ii).48 BURWELL v. HOBBY LOBBY STORES, INC.

Opinion of the Court

Recognizing a religious accommodation under RFRA for particular coverage requirements, therefore, does not threaten the viability of ACA’s comprehensive scheme in the way that recognizing relig ious objections to particular expenditures from general tax revenues would. 43 In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself. The dissent worries about forc

ing the federal courts to apply RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable laws, and the dissent expresses a desire to keep the courts out of this business. See post , at 32–35. In making this plea, the dissent reiterates a point made forcefully by the Court in Smith. 494 U. S., at 888– 889 (applying the Sherbert test to all free-exercise claims “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind”). But Congress, in enacting RFRA, took the position that “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U. S. C. §2000bb(a)(5)

. The wisdom of Congress’s judgment on this

——————

43 HHS highlights certain statements in the opinion in Lee that it regards as supporting its position in these cases. In particular, HHS notes the statement that “[w]hen follo wers 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 scheme s which are binding on others in that activity.” 455 U. S., at 261. Lee was a free exercise, not a RFRA, case, and the statement to which HHS po ints, if taken at face value, is squarely inconsistent with the pl ain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, the Government does not have a free hand in imposing obliga

tions that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict RFRA test is

met.49 Cite as: 573 U. S. ____ (2014)

Opinion of the Court

matter is not our concern. Ou r responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.

* * *
The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statu

tory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns. The judgment of the Tenth Circuit in No. 13–354 is affirmed; the judgment of the Third Circuit in No. 13–356 is reversed, and that case is remanded for further proceed

ings consistent with this opinion.
It is so ordered._________________

_________________ 1 Cite as: 573 U. S. ____ (2014)

K ENNEDY

, J., concurring



## SUPREME COURT OF THE UNITED STATES

Nos. 13–354 and 13–356

SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL ., PETITIONERS

13–354 v. HOBBY LOBBY STORES, INC., ET AL

.

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

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL ., PETITIONERS

13–356 v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL

.

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

[June 30, 2014]

J USTICE K ENNEDY , concurring.
It seems to me appropriate, in joining the Court’s opin

ion, to add these few remarks. At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent. The Court and the dissent disagree on the proper interpretation of the Religious Freedom and Restoration Act of 1993 (RFRA), but do agree on the purpose of that statute. 42 U. S. C. §2000bb et seq. It is to ensure that interests in religious freedom are protected. Ante , at 5–6;
post , at 8–9 (G INSBURG , J., dissenting). In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a
divine creator and a divine law. For those who choose this2 BURWELL v. HOBBY LOBBY STORES, INC.

K ENNEDY

, J., concurring

course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts. Free exerci se in this sense implicates more than just freedom of belief. See Cantwell v. Connect

icut , 310 U. S. 296, 303 (1940). It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community. But in a complex society and an era of pervasive governmental regulation, defining the proper realm for free exercise can be difficult. In these cases the plaintiffs deem it necessary to exercise their religious beliefs within the context of their own closely held, for-profit corporations. They claim protection under RFRA, the federal statute discussed with care and in detail in the Court’s opinion. As the Court notes, under our precedents, RFRA imposes
a “ ‘stringent test.’ ” Ante, at 6 (quoting City of Boerne v. Flores , 521 U. S. 507, 533 (1997)). The Government must demonstrate that the application of a substantial burden to a person’s exercise of religion “(1) is in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of further ing that compelling govern

mental interest.” §2000bb–1(b). As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that
the mandate serves the Govern ment’s compelling interest in providing insurance coverage that is necessary to pro

tect the health of female employees, coverage that is sig

nificantly more costly than for a male employee. Ante , at 39; see, e.g ., Brief for HHS in No. 13–354, pp. 14–15. There are many medical conditions for which pregnancy is contraindicated. See, e.g. , id ., at 47. It is important to confirm that a premise of the Court’s opinion is its as

sumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees. Ante , at 40.3 Cite as: 573 U. S. ____ (2014)

K ENNEDY

, J., concurring

But the Government has not made the second showing required by RFRA, that the means it uses to regulate is the least restrictive way to further its interest. As the Court’s opinion explains, the record in these cases shows that there is an existing, recognized, workable, and already-implemented framework to provide coverage. That
framework is one that HHS has itself devised, that the plaintiffs have not criticized wi th a specific objection that has been considered in detail by the courts in this litiga

tion, and that is less restrictive than the means challenged by the plaintiffs in these cases. Ante, at 9–10, and n. 9,

43–44. The means the Government chose is the imposition of a direct mandate on the employers in these cases. Ante, at
8–9. But in other instances the Government has allowed the same contraception coverage in issue here to be pro

vided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those
entities. See ante, at 9–10, and n. 9, 43–44. The accom

modation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs. See ante, at 44. On this record and as explained by the Court, the Gov

ernment has not met its burden of showing that it cannot accommodate the plaintiffs’ similar religious objections
under this established framework. RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between differe nt religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same
accommodation. The parties who were the plaintiffs in the District Courts argue that the Government could pay for the methods that are found objectionable. Brief for Respond

-4 BURWELL v. HOBBY LOBBY STORES, INC.

K ENNEDY

, J., concurring

ents in No. 13–354, p. 58. In discussing this alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program. Ante, at 41–43. The Court properly does not resolve whether one freedom should be protected by creating incentives for additional gove rnment constraints. In these cases, it is the Court’s understanding that an accommoda

tion may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be estab

lished that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place. Ante, at 43–44. “[T]he American community is today, as it long has been, a rich mosaic of religious faiths.” Town of Greece v. Galloway , 572 U. S. ___, ___ (2014) (K AGAN , J., dissenting) (slip op., at 15). Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by govern ment in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Govern

ment has designed, identified, and used for circumstances closely parallel to those pr esented here. RFRA requires
the Government to use this le ss restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise. Ante, at 45–46. For these reasons and others put forth by the Court, I join its opinion._________________

_________________ 1 Cite as: 573 U. S. ____ (2014)

G INSBURG

, J., dissenting



## SUPREME COURT OF THE UNITED STATES

Nos. 13–354 and 13–356

SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL ., PETITIONERS

13–354 v. HOBBY LOBBY STORES, INC., ET AL

.

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

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL ., PETITIONERS

13–356 v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL

.

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

[June 30, 2014]

J USTICE G INSBURG , with whom J USTICE S OTOMAYOR joins, and with whom J USTICE B REYER and J USTICE
K

AGAN join as to all but Part III–C–1, dissenting.
In a decision of startling breadth, the Court holds that commercial enterprises, includ ing corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt

outs impose on others, hold no sway, the Court decides, at
least when there is a “less re strictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a2 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

religion-based exemption, the government, i.e., the general public, can pick up the tab. See ante , at 41–43. 1 The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommoda

tions so extreme, for our decisions leave no doubt on that
score. See infra , at 6–8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq. , dictated the extraordinary religion-based ex emptions today’s decision endorses. In the Court’s view, RFRA demands accommo

dation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I

dissent.

I
“The ability of women to participate equally in the
economic and social life of the Nation has been facilitated by their ability to control th eir reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey , 505
U. S. 833, 856 (1992). Congress acted on that understand

-

——————

1 The Court insists it has held none of these things, for another less restrictive alternative is at hand: extending an existing accommoda

tion, currently limited to religious nonprofit organizations, to encom

pass commercial enterprises. See ante, at 3–4. With that accommoda

tion extended, the Court asserts, “w omen would still be entitled to all [Food and Drug Administration]-approv ed contraceptives without cost sharing.” Ante, at 4. In the end, however, the Court is not so sure. In
stark contrast to the Court’s initial emphasis on this accommodation, it ultimately declines to decide whether the highlighted accommodation is
even lawful. See ante, at 44 (“We do not decide today whether an approach of this type complies with RFRA . . . .”).3 Cite as: 573 U. S. ____ (2014)

G INSBURG

, J., dissenting

ing when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction, the Department of Health and Human Services (HHS), in consultation with public health experts, promulgated regulati ons requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). The genesis of this coverage should enlighten the Court’s resolution of these

cases.

A
The Affordable Care Act (ACA), in its initial form, speci

fied three categories of preventive care that health plans must cover at no added cost to the plan participant or beneficiary. 2 Particular services were to be recommended by the U. S. Preventive Serv ices Task Force, an independ

ent panel of experts. The scheme had a large gap, how

ever; it left out preventive services that “many women’s health advocates and medical professionals believe are critically important.” 155 Cong. Rec. 28841 (2009) (state

ment of Sen. Boxer). To correct this oversight, Senator
Barbara Mikulski introduced the Women’s Health Amendment, which added to the ACA’s minimum coverage requirements a new category of preventive serv ices specific
to women’s health. Women paid significantly more than men for preventive care, the amendment’s proponents noted; in fact, cost

——————

2 See 42 U. S. C. §300gg–13(a)(1)–(3) (group health plans must pro

vide coverage, without cost sharing, for (1) certain “evidence-based items or services” recommended by th e U. S. Preventive Services Task Force; (2) immunizations recommended by an advisory committee of the
Centers for Disease Control and Prev ention; and (3) “with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration”).4 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

barriers operated to block many women from obtaining needed care at all. See, e.g., id., at 29070 (statement of Sen. Feinstein) (“Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.”); id., at 29302 (statement of Sen. Mikulski) (“co

payments are [often] so high that [women] avoid getting [preventive and screening services] in the first place”). And increased access to contraceptive services, the spon

sors comprehended, would yiel d important public health gains. See, e.g., id., at 29768 (statement of Sen. Durbin) (“This bill will expand health insurance coverage to the vast majority of [the 17 million women of reproductive age in the United States who are uninsured] . . . . This ex

panded access will reduce unintended pregnancies.”). As altered by the Women’s Health Amendment’s pas

sage, the ACA requires new insurance plans to include coverage without cost sharing of “such additional preven

tive care and screenings . . . as provided for in comprehen

sive guidelines supported by the Health Resources and Services Administration [(HRSA)],” a unit of HHS. 42

U. S. C. §300gg–13(a)(4). Thus charged, the HRSA devel

oped recommendations in consultation with the Institute of Medicine (IOM). See 77 Fed. Reg. 8725–8726 (2012). 3 The IOM convened a group of independent experts, includ

ing “specialists in disease prevention [and] women’s health”; those experts prepared a report evaluating the efficacy of a number of preventive services. IOM, Clinical Prevention Services for Women: Closing the Gaps 2 (2011) (hereinafter IOM Report). Consistent with the findings of “[n]umerous health professional associations” and other organizations, the IOM experts determined that preven

-

——————

3 The IOM is an arm of the National Academy of Sciences, an organi

zation Congress established “for th e explicit purpose of furnishing
advice to the Government.” Public Citizen v. Department of Justice

, 491 U. S. 440, 460, n. 11 (1989) (i nternal quotation marks omitted).5 Cite as: 573 U. S. ____ (2014)

G INSBURG

, J., dissenting

tive coverage should include the “full range” of FDA

approved contraceptive methods. Id., at 10. See also id.,

at 102–110. In making that recommendation, the IOM’s reportexpressed concerns similar to those voiced by congressional proponents of the Women’s Health Amendment. The report noted the disproporti onate burden women carried for comprehensive health services and the adverse health consequences of excluding contraception from preventive care available to employees wi thout cost sharing. See,

e.g., id., at 19 (“[W]omen are consistently more likely than men to report a wide range of cost-related barriers to receiving . . . medical tests and treatments and to filling prescriptions for themselves and their families.”); id., at 103–104, 107 (pregnancy may be contraindicated for
women with certain medical co nditions, for example, some congenital heart diseases, pulmonary hypertension, and Marfan syndrome, and contraceptives may be used to
reduce risk of endometrial cancer, among other serious medical conditions); id ., at 103 (women with unintended pregnancies are more likely to experience depression and anxiety, and their children face “increased odds of preterm birth and low birth weight”). In line with the IOM’s suggestions, the HRSA adopted guidelines recommending coverage of “[a]ll [FDA-] approved contraceptive method s, sterilizatio n procedures, and patient education and counseling for all women with reproductive capacity.” 4 Thereafter, HHS, the Depart

ment of Labor, and the Department of Treasury promul

gated regulations requiring group health plans to include coverage of the contraceptive services recommended in the

——————

4 HRSA, HHS, Women’s Preventive Serv ices Guidelines, available at http://www.hrsa.gov/womensguidelines / (all Internet materials as visited June 27, 2014, and available in Clerk of Court’s case file), reprinted in App. to Brief for Petitioners in No. 13–354, pp. 43–44a. See also 77 Fed. Reg. 8725–8726 (2012).6 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

HRSA guidelines, subject to certain exceptions, described infra , at 25–27. 5 This opinion refers to these regulations as the contraceptive coverage requirement.

B
While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny cov

erage based on its asserted “religious beliefs or moral convictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see id., at S1162–S1173 (Mar. 1, 2012) (debate and vote). 6 That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.” Id., at S1127 (Feb. 29, 2012). Re

jecting the “conscience amendm ent,” Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers.

II
Any First Amendment Free Ex ercise Clause claim Hobby Lobby or Conestoga 7 might assert is foreclosed by this
Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U. S. 872 (1990). In Smith

, two members of the Native American Church were dis

-

——————

5 45 CFR §147.130(a)(1)(iv) (2013) (HHS); 29 CFR §2590.715– 2713(a)(1)(iv) (2013) (Labor); 26 CFR §54.9815–2713(a)(1)(iv) (2013) (Treasury).

6 Separating moral convictions from re ligious beliefs would be of ques

tionable legitimacy. See Welsh v. United States , 398 U. S. 333, 357–358 (1970) (Harlan, J., concurring in result).

7 As the Court explains, see ante, at 11–16, these cases arise from two separate lawsuits, one filed by Hobby Lobby, its affiliated business (Mardel), and the family that operat es these businesses (the Greens); the other filed by Conestoga and the family that owns and controls that business (the Hahns). Unless otherwise specified, this opinion refers to the respective groups of plaintiffs as Hobby Lobby and Conestoga.7 Cite as: 573 U. S. ____ (2014)

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, J., dissenting

missed from their jobs and denied unemployment benefits because they ingested peyote at, and as an essential ele

ment of, a religious ceremony. Oregon law forbade the consumption of peyote, and th is Court, relying on that prohibition, rejected the employ ees’ claim that the denial of unemployment benefits violated their free exercise rights. The First Amendment is not offended, Smith held, when “prohibiting the exercise of religion . . . is not the object of [governmental regulation] but merely the inci

dental effect of a generally applicable and otherwise valid provision.” Id., at 878; see id., at 878–879 (“an individual’s religious beliefs [do not] excuse him from compliance
with an otherwise valid law prohibiting conduct that the State is free to regulate”). The ACA’s contraceptive cover

age requirement applies generally, it is “otherwise valid,” it trains on women’s well being, not on the exercise of religion, and any effect it has on such exercise is
incidental.
Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby Lobby and Cones

toga seek. Accommodations to religious beliefs or obser

vances, the Court has clarified, must not significantly impinge on the interests of third parties. 8

——————

8 See Wisconsin v. Yoder , 406 U. S. 205, 230 (1972) (“This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.”); Estate of Thornton v. Caldor, Inc. , 472 U. S. 703 (1985) (invalidating state statute requiring employers to accommodate an empl oyee’s Sabbath observance where
that statute failed to take into a ccount the burden such an accommoda

tion would impose on the employer or other employees). Notably, in construing the Religious Land Use an d Institutionalized Persons Act of 2000 (RLUIPA), 42 U. S. C. §2000cc et seq., the Court has cautioned that “adequate account” must be taken of “the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson

, 544 U. S. 709, 720 (2005); see id., at 722 (“an accommodation must be

measured so that it does not overri de other significant interests”). A8 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependen ts. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise
secure. See Catholic Charities of Sacramento, Inc. v. Superior Court , 32 Cal. 4th 527, 565, 85 P. 3d 67, 93 (2004) (“We are unaware of any de cision in which . . . [the

U. S. Supreme Court] has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the righ ts of third parties.”). In sum, with respect to free exercise claims no less than free speech claims, “ ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ ” Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919).

III
A
Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government shows that application of the burden is “the
least restrictive means” to further a “compelling govern

mental interest.” 42 U. S. C. §2000bb–1(a), (b)(2). In RFRA, Congress “adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith .” Gonzales v. O Centro Espírita Beneficente União do Vegetal , 546 U. S. 418, 424 (2006). RFRA’s purpose is specific and written into the statute itself. The Act was crafted to “restore the compelling

—————— balanced approach is all the more in order when the Free Exercise Clause itself is at stake, not a statute designed to promote accommoda

tion to religious beliefs and practices.9 Cite as: 573 U. S. ____ (2014)

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, J., dissenting

interest test as set forth in Sherbert v. Verner , 374 U. S. 398 (1963) and Wisconsin v. Yoder , 406 U. S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” §2000bb(b)(1). 9 See also §2000bb(a)(5) (“[T]he compelling
interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances betweenreligious liberty and competing prior governmental interests.”); ante, at 48 (agreeing that the pre- Smith compel

ling interest test is “workable” and “strike[s] sensible balances”). The legislative history is correspondingly emphatic on RFRA’s aim. See, e.g., S. Rep. No. 103–111, p. 12 (1993) (hereinafter Senate Report) (RFRA’s purpose was “only to overturn the Supreme Court’s decision in Smith ,” not to “unsettle other areas of the law.”); 139 Cong. Rec. 26178 (1993) (statement of Sen. Kennedy) (RFRA was “designed to restore the compelling inte rest test for deciding free exercise claims.”). In line with this restorative purpose, Congress expected courts considering RFRA claims to “look to free exercise cases decided prior to Smith for guidance.” Senate Report 8. See also H. R. Rep. No. 103– 88, pp. 6–7 (1993) (hereinafter House Report) (same). In short, the Act reinstates the law as it was prior to Smith

, without “creat[ing] . . . new rights for any religious prac

tice or for any potential litigant.” 139 Cong. Rec. 26178 (statement of Sen. Kennedy). Given the Act’s moderate purpose, it is hardly surprising that RFRA’s enactment in 1993 provoked little controversy. See Brief for Senator Murray et al. as Amici Curiae 8 (hereinafter Senators

——————

9 Under Sherbert and Yoder , the Court “requir[ed] the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve
that interest.” Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U. S. 872, 894 (1990) (O’Connor, J., concurring in judgment).10 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

Brief ) (RFRA was approved by a 97-to-3 vote in the Senate and a voice vote in the House of Representatives).

B
Despite these authoritative indications, the Court sees RFRA as a bold initiative departing from, rather than restoring, pre- Smith jurisprudence. See ante, at 6, n. 3, 7, 17, 25–27. To support its conception of RFRA as a meas

ure detached from this Court’s decisions, one that sets a new course, the Court points first to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U. S. C. §2000cc et seq., which altered RFRA’s defini

tion of the term “exercise of religion.” RFRA, as originally enacted, defined that term to mean “the exercise of reli

gion under the First Amendment to the Constitution.” §2000bb–2(4) (1994 ed.). See ante, at 6–7. As amended by RLUIPA, RFRA’s definition now includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000bb–2(4) (2012 ed.) (cross

referencing §2000cc–5). That definitional change, accord

ing to the Court, reflects “an obvious effort to effect a complete separation from Fi rst Amendment case law.” Ante, at 7. The Court’s reading is not plausible. RLUIPA’s altera

tion clarifies that courts should not question the centrality of a particular religious exercise. But the amendment in no way suggests that Congress meant to expand the class of entities qualified to mount religious accommodation claims, nor does it relieve courts of the obligation to in

quire whether a government action substantially burdens a religious exercise. See Rasul v. Myers , 563 F. 3d 527, 535 (CADC 2009) (Brown, J., concurring) (“There is no
doubt that RLUIPA’s drafters , in changing the definition of ‘exercise of religion,’ wanted to broaden the scope of the kinds of practices protected by RFRA, not increase the universe of individuals protected by RFRA.”); H. R. Rep.11 Cite as: 573 U. S. ____ (2014)

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, J., dissenting

No. 106–219, p. 30 (1999). See also Gilardi v. United States Dept. of Health and Human Servs. , 733 F. 3d 1208, 1211 (CADC 2013) (RFRA, as amended, “provides us with no helpful definition of ‘exercise of religion.’ ”); Henderson

v. Kennedy , 265 F. 3d 1072, 1073 (CADC 2001) (“The [RLUIPA] amendments did no t alter RFRA’s basic prohi

bition that the ‘[g]overnment shall not substantially bur

den a person’s exercise of religion.’ ”). 10 Next, the Court highlights RFRA’s requirement that the government, if its action substantially burdens a person’s religious observance, must de monstrate that it chose the least restrictive means for furthering a compelling inter

est. “[B]y imposing a least- restrictive-means test,” the Court suggests, RFRA “went beyond what was required by

our pre- Smith decisions.” Ante, at 17, n. 18 (citing City of

Boerne v. Flores , 521 U. S. 507 (1997)). See also ante, at 6,

n. 3. But as RFRA’s statements of purpose and legislative history make clear, Congress intended only to restore, not to scrap or alter, the balanc ing test as this Court had applied it pre- Smith . See supra, at 8–9. See also Senate Report 9 (RFRA’s “compelling interest test generally
should not be construed more stringently or more leniently than it was prior to Smith .”); House Report 7 (same). The Congress that passed RFRA correctly read this Court’s pre- Smith case law as including within the “com

pelling interest test” a “least restrictive means” require

ment. See, e.g., Senate Report 5 (“Where [a substantial] burden is placed upon the free exercise of religion, the Court ruled [in Sherbert ], the Government must demon

-

——————

10 RLUIPA, the Court notes, includes a provision directing that “[t]his chapter [ i.e. , RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of [the Act] and the Constitution.” 42 U. S. C. §2000cc–3(g); see ante, at 6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of reli

gion,” as RLUIPA does, but contains no omnibus rule of construction governing the statute in its entirety.12 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

strate that it is the least restrictive means to achieve a compelling governmental intere st.”). And the view that the pre- Smith test included a “least restrictive means” requirement had been aired in testimony before the Sen

ate Judiciary Committee by expe rts on religious freedom. See, e.g., Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 78–79 (1993) (statement of Prof. Douglas Laycock).
Our decision in City of Boerne , it is true, states that the least restrictive means require ment “was not used in the

pre- Smith jurisprudence RFRA purported to codify.” See

ante, at 6, n. 3, 17, n. 18. As just indicated, however, thatstatement does not accurately convey the Court’s preSmith jurisprudence. See Sherbert , 374 U. S., at 407 (“[I]t would plainly be incumbent upon the [government] to demonstrate that no alternative forms of regulation would combat [the problem] without infringing First Amendment rights.”); Thomas v. Review Bd. of Indiana Employment Security Div. , 450 U. S. 707, 718 (1981) (“The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”). See also Berg, The New Attacks on Reli

gious Freedom Legislation and Why They Are Wrong, 21 Cardozo L. Rev. 415, 424 (1999) (“In Boerne , the Court erroneously said that the least restrictive means test ‘was not used in the pre- Smith jurisprudence.’ ”). 11

C
With RFRA’s restorative purpose in mind, I turn to the

——————

11 The Court points out that I jo ined the majority opinion in City of

Boerne and did not then question the st atement that “least restrictive means . . . was not used [pre- Smith ].” Ante, at 17, n. 18. Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: “I see no reason why I sh ould be consciously wrong today because I was unconsciously wrong yesterday.” Massachusetts v. United States , 333 U. S. 611, 639–640 (1948) (dissenting opinion).13 Cite as: 573 U. S. ____ (2014)

G INSBURG

, J., dissenting

Act’s application to the instant lawsuits. That task, in view of the positions taken by the Court, requires consid

eration of several questions, each potentially dispositive of Hobby Lobby’s and Conestoga’s claims: Do for-profit corpo

rations rank among “person[s]” who “exercise . . . reli

gion”? Assuming that they do, does the contraceptive coverage requirement “substantially burden” their reli

gious exercise? If so, is the requirement “in furtherance of a compelling government interest”? And last, does the requirement represent the le ast restrictive means for furthering that interest? Misguided by its errant premise that RFRA moved beyond the pre- Smith case law, the Court falters at each step of its analysis.

1
RFRA’s compelling interest test, as noted, see supra, at 8, applies to government actions that “substantially bur

den a person’s exercise of religion .” 42 U. S. C. §2000bb– 1(a) (emphasis added). This reference, the Court submits, incorporates the definition of “person” found in the Dic

tionary Act, 1 U. S. C. §1, which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” See ante, at

19–20

. The Dictionary Act’s defi nition, however, controls only where “context” does not “i ndicat[e] otherwise.” §1. Here, context does so indicate. RFRA speaks of “a person’s exercise of religion .” 42 U. S. C. §2000bb–1(a) (emphasis added). See also §§2000bb–2(4), 2000cc–5(7)(a). 12 Whether

——————

12 As earlier explained, see supra, at 10–11, RLUIPA’s amendment of the definition of “exercise of relig ion” does not bear the weight the Court places on it. Moreover, it is passing strange to attribute to RLUIPA any purpose to cover enti ties other than “religious as

sembl[ies] or institution[s].” 42 U. S. C. §2000cc(a)(1). But cf. ante, at

26. That law applies to land-use regulation. §2000cc(a)(1). To permit commercial enterprises to challenge zoning and other land-use regula

-14 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

a corporation qualifies as a “person” capable of exercising religion is an inquiry one cannot answer without refer

ence to the “full body” of pre- Smith “free-exercise caselaw.”
Gilardi , 733 F. 3d, at 1212. There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations. Until this litigation, no deci sion of this Court recognized a for-profit corporation’s qua lification for a religious ex

emption from a generally applicable law, whether under
the Free Exercise Clause or RFRA. 13 The absence of such precedent is just what one woul d expect, for the exercise of religion is characteristic of nat ural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of
law.” Trustees of Dartmouth College v. Woodward , 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n , 558 U. S. 310, 466 (2010) (opin

ion concurring in part and dissenting in part). The First Amendment’s free exercise protections, the

—————— tions under RLUIPA would “dramatica lly expand the statute’s reach” and deeply intrude on lo cal prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26.

13 The Court regards Gallagher v. Crown Kosher Super Market of Mass., Inc.

, 366 U. S. 617 (1961), as “suggest[ing] . . . that for-profit corporations possess [free-exercise] rights.” Ante, at 26–27. See also

ante, at 21, n. 21. The suggestion is ba rely there. True, one of the five challengers to the Sunday closing law assailed in Gallagher was a corporation owned by four Orthodox Jews. The other challengers were human individuals, not artificial, la w-created entities, so there was no need to determine whether the corporation could institute the litiga

tion. Accordingly, the plurality stat ed it could pretermit the question “whether appellees ha[d] standing” because Braunfeld v. Brown , 366
U. S. 599 (1961), which upheld a similar closing law, was fatal to their claim on the merits. 366 U. S., at 631.15 Cite as: 573 U. S. ____ (2014)

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, J., dissenting

Court has indeed recognized, shelter churches and other nonprofit religion-based organizations. 14 “For many indi

viduals, religious activity derives meaning in large meas

ure from participation in a larger religious community,” and “furtherance of the autonomy of religious organiza

tions often furthers individual religious freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos , 483 U. S. 327, 342 (1987) (Brennan, J., concurring in ju dgment). The Court’s “spe

cial solicitude to the rights of religious organizations,” Hosanna-Tabor Evangelical Lutheran Church and School

v. EEOC , 565 U. S. ___, ___ (2012) (slip op., at 14), however, is just that. No such solicitude is traditional for com

mercial organizations. 15 Indeed, until today, religious

——————

14 See, e.g., Hosanna-Tabor Evangelical Lutheran Church and School

v. EEOC , 565 U. S. ___ (2012); Gonzales v. O Centro Espírita Beneficente União do Vegetal , 546 U. S. 418 (2006); Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520 (1993); Jimmy Swaggart Ministries

v. Board of Equalization of Cal. , 493 U. S. 378 (1990).

15 Typically, Congress has accorded to organizations religious in char

acter religion-based exemptions from statutes of general application. E.g., 42 U. S. C. §2000e–1(a) (Title VII exemption from prohibition against employment discrimination based on religion for “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on . . . of its activities”); 42 U. S. C. §12113(d)(1) (parallel exemption in Americans With Disabilities Act of 1990). It can scarcely be maintain ed that RFRA enla rges these exemp

tions to allow Hobby Lobby and Conestoga to hire only persons who share the religious beliefs of the Gr eens or Hahns. Nor does the Court suggest otherwise. Cf. ante, at 28.

The Court does identify two statut ory exemptions it reads to cover for-profit corporations, 42 U. S. C. §§300a–7(b)(2) and 238n(a), and
infers from them that “C ongress speaks with spec ificity when it intends a religious accommodation not to extend to for-profit corporations,”

ante, at 28. The Court’s inference is unwarranted. The exemptions the Court cites cover certain medical personnel who object to performing or assisting with abortions. Cf. ante, at 28, n. 27 (“the pr otection provided by §238n(a) differs significantly from the protection provided by16 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

exemptions had never been extended to any entity operat

ing in “the commercial, profit-making world.” Amos , 483
U. S., at 337. 16 The reason why is hardly obscure. Religious organiza

tions exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the

—————— RFRA”). Notably, the Court does not assert that these exemptions have in fact been afforded to for-profit corporations. See §238n(c) (“health care entity” covered by exemption is a term defined to include “an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions”); Tozzi,
Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence?, 48 J. Catholic Legal Studies 269, 296, n. 133 (2009) (“Catholic physicians, but not necessarily hospitals, . . . may be able to invoke [§238n(a)] . . . .”); cf. S. 137, 113th Cong., 1st Sess. (2013) (as introduced) (Abortion Non-Discrimination Act of 2013, wh ich would amend the definition of “health care entity” in §238n to incl ude “hospital[s],” “health insurance plan[s],” and other health care facilit ies). These provisions are reveal

ing in a way that detracts from on e of the Court’s main arguments. They show that Congress is not cont ent to rest on the Dictionary Act when it wishes to ensure that pa rticular entities are among those eligible for a religious accommodation.

Moreover, the exemption codified in §238n(a) was not enacted until three years after RFRA’s passage. See Omnibus Consolidated Rescis

sions and Appropriations Act of 1996, §515, 110 Stat. 1321–245. If, as the Court believes, RFRA opened a ll statutory schemes to religion

based challenges by for-profit corpor ations, there would be no need for a statute-specific, post-RFRA exemption of this sort.

16 That is not to say that a category of plaintiffs, such as resident aliens, may bring RFRA claims only if this Court expressly “addressed their [free-exercise] rights before Smith .” Ante, at 27. Continuing with the Court’s example, resident aliens , unlike corporations, are flesh-and

blood individuals who plainly count as persons sheltered by the First Amendment, see United States v. Verdugo-Urquidez , 494 U. S. 259, 271 (1990) (citing Bridges v. Wixon , 326 U. S. 135, 148 (1945)), and a fortiori , RFRA.17 Cite as: 573 U. S. ____ (2014)

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, J., dissenting

work force of for-profit corporations. See 42 U. S. C. §§2000e(b), 2000e–1(a), 2000e–2(a); cf. Trans World Airlines, Inc. v. Hardison , 432 U. S. 63, 80–81 (1977) (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. 17 One can only wonder why the Court shuts this key difference from sight. Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre- Smith precedent Con

gress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. See
Whitman v. American Trucking Assns., Inc. , 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouse

holes”). The text of RFRA makes no such statement and the legislative history does not so much as mention for

profit corporations. See Hobby Lobby Stores, Inc. v. Sebelius , 723 F. 3d 1114, 1169 (CA10 2013) (Briscoe, C. J., concurring in part and disse nting in part) (legislative record lacks “any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corpora

tions”). See also Senators Brief 10–13 (none of the

——————

17 I part ways with J USTICE K ENNEDY on the context relevant here. He sees it as the employers’ “exerci se [of] their religious beliefs within the context of their own closely held, for-profit corporations.” Ante, at 2 (concurring opinion). See also ante, at 45–46 (opinion of the Court) (similarly concentrating on religious faith of employers without refer

ence to the different belie fs and liberty interests of employees). I see as the relevant context the employers’ asserted right to exercise religion within a nationwide program designed to protect against health haz

ards employees who do not subscribe to their employers’ religious
beliefs.18 BURWELL v. HOBBY LOBBY STORES, INC.

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, J., dissenting

cases cited in House or Senate Judiciary Committee reports accompanying RFRA, or mentioned during floor speeches, recognized the free exercise rights of for-profit corporations). The Court notes that for-profit corporations may sup

port charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious nonprofit organizations. See

ante, at 20–25. See also ante, at 3 (K ENNEDY , J., concur

ring) (criticizing the Govern ment for “distinguishing be

tween different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation”). 18 Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiasti

cal and lay” corporations dates back to Blackstone, see 1

W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before
the enactment of the Internal Revenue Code. See Terrett

v. Taylor , 9 Cranch 43, 49 (1815) (describing religious corporations); Trustees of Da rtmouth College , 4 Wheat., at 645 (discussing “eleemosynary” corporations, including those “created for the promotion of religion”). To reiterate, “for-profit corporations are different from religious non

-

——————

18 According to the Court, the Govern ment “concedes” that “nonprofit corporation[s]” are pr otected by RFRA. Ante, at 19. See also ante, at 20, 24, 30. That is not an accurate description of the Government’s position, which encompa sses only “churches,” “ religious institutions,”
and “ religious non-profits.” Brief for Respondents in No. 13–356, p. 28 (emphasis added). See also Reply Brief in No. 13–354, p. 8 (“RFRA incorporates the longstanding an d common-sense distinction between religious organizations, which sometimes have been accorded accom

modations under generally applicable laws in recognition of their accepted religious character, and for-profit corporations organized to do business in the commercial world.”).19 Cite as: 573 U. S. ____ (2014)

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, J., dissenting

profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a commu

nity of believers].” Gilardi , 733 F. 3d, at 1242 (Edwards, J., concurring in part and dissenting in part) (emphasis deleted). Citing Braunfeld v. Brown , 366 U. S. 599 (1961), the Court questions why, if “a sole proprietorship that seeks to make a profit may assert a free-exercise claim, [Hobby Lobby and Conestoga] can’t . . . do the same?” Ante, at 22 (footnote omitted). See also ante, at 16–17. But even accepting, arguendo , the premise that unincorporated business enterprises may gain religious accommodations under the Free Exercise Clause, the Court’s conclusion is unsound. In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obliga

tions. One might ask why the separation should hold only when it serves the interest of those who control the corpo

ration. In any event, Braunfeld is hardly impressive authority for the entitlement Hobby Lobby and Conestoga seek. The free exercise claim asserted there was promptly rejected on the merits.
The Court’s determination that RFRA extends to for

profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private. 19 Little doubt that RFRA

——————

19 The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for “it seems unlikely” that large corpor ations “will often assert RFRA
claims.” Ante, at 29. Perhaps so, but as Hobby Lobby’s case demon

strates, such claims are indeed pu rsued by large corporations, employ

ing thousands of persons of differe nt faiths, whose ownership is not diffuse. “Closely held” is not synonymous with “small.” Hobby Lobby is20 BURWELL v. HOBBY LOBBY STORES, INC.

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, J., dissenting

claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem
offensive to their faith.

2
Even if Hobby Lobby and Conestoga were deemed RFRA “person[s],” to gain an exemption, they must demonstrate that the contraceptive coverage requirement “substan

tially burden[s] [their] exercise of religion.” 42 U. S. C. §2000bb–1(a). Congress no doubt meant the modifier “substantially” to carry weight. In the original draft of RFRA, the word “burden” appeared unmodified. The word “substantially” was inserted pursuant to a clarifying amendment offered by Senators Kennedy and Hatch. See

—————— hardly the only enterprise of siza ble scale that is family owned or closely held. For example, the fa mily-owned candy giant Mars, Inc., takes in $33 billion in revenues an d has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in reve

nues and employs some 140,000 persons. See Forbes, America’s Larg

est Private Companies 2013, av ailable at http://www.forbes.com/ largest-private-companies/.

Nor does the Court offer any instruction on how to resolve the dis

putes that may crop up among corporate owners over religious values
and accommodations. The Court is sa tisfied that “[s]tate corporate law provides a ready means for resolving any conflicts,” ante , at 30, but the authorities cited in support of that proposition are hardly helpful. See Del. Code Ann., Tit. 8, §351 (2011) (certificates of incorporation may specify how the business is managed); 1 J. Cox & T. Hazen, Treatise on the Law of Corporations §3:2 (3d ed. 2010) (section entitled “Selecting the state of incorporation”); id., §14:11 (observing that “[d]espite the frequency of dissension and deadlock in close corporations, in some states neither legislatures nor courts have provided satisfactory solu

tions”). And even if a dispute settlement mechanism is in place, how is the arbiter of a religion-based intracorporate controversy to resolve the disagreement, given this Court’s instruction that “courts have no business addressing [whether an asserted religious belief] is substan

tial,” ante, at 36?21 Cite as: 573 U. S. ____ (2014)

G INSBURG

, J., dissenting

139 Cong. Rec. 26180. In proposing the amendment, Senator Kennedy stated that RFRA, in accord with the Court’s pre- Smith case law, “does not require the Govern

ment to justify every action that has some effect on reli

gious exercise.” Ibid. The Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belie[f ] that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” Ante, at 36. 20 I agree with the Court that the Green and Hahn families’ religious convictions regarding contrace ption are sincerely held.
See Thomas , 450 U. S., at 715 (courts are not to question where an individual “dr[aws] the line” in defining which practices run afoul of her religious beliefs). See also 42

U. S. C. §§2000bb–1(a), 2000bb–2(4), 2000cc–5(7)(A). 21 But those beliefs, however deep ly held, do not suffice to sustain a RFRA claim. RFRA, properly understood, dis

tinguishes between “factual allegations that [plaintiffs’]

——————

20 The Court dismisses the argument, advanced by some amici , that the $2,000-per-employee tax charged to certain employers that fail to provide health insurance is less than the average cost of offering health insurance, noting that the Government has not provided the statistics that could support such an argument. See ante, at 32–34. The Court overlooks, however, that it is not the Government’s obligation to prove
that an asserted burden is in substantial. Instead, it is incumbent upon plaintiffs to demonstrate, in support of a RFRA claim, the substantial

ity of the alleged burden.

21 The Court levels a criticism that is as wrongheaded as can be. In no way does the dissent “tell the plaint iffs that their beliefs are flawed.” Ante, at 37. Right or wrong in this domain is a judgment no Member of this Court, or any civil court, is authorized or equipped to make. What the Court must decide is not “the pl ausibility of a religious claim,” ante, at 37 (internal quotation marks omitted), but whether accommodating that claim risks depriving others of rights accorded them by the laws of
the United States. See supra, at 7–8; infra , at 27.22 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion . . . that [plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake. Kaemmerling v. Lappin , 553 F. 3d 669, 679 (CADC 2008). That distinction is a facet of the pre- Smith jurispru

dence RFRA incorporates. Bowen v. Roy , 476 U. S. 693 (1986), is instructive. There, the Court rejected a free exercise challenge to the Government’s use of a Native American child’s Social Security number for purposes of administering benefit programs. Without questioning the sincerity of the father’s religious belief that “use of [his daughter’s Social Security] number may harm [her] spirit,”
the Court concluded that th e Government’s internal uses of that number “place[d] [no] restriction on what [the father] may believe or what he may do.” Id., at 699

. Recognizing that the father’s “religious views may not accept” the position that the challenged uses concerned only the Government’s internal affairs, the Court ex

plained that “for the adjudicati on of a constitutional claim, the Constitution, rather than an individual’s religion, must supply the frame of reference.” Id., at 700–701, n. 6.
See also Hernandez v. Commissioner , 490 U. S. 680, 699 (1989) (distinguishing between, on the one hand, “ques

tion[s] [of] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpreta

tions of those creeds,” and, on the other, “whether the alleged burden imposed [by the challenged government action] is a substantial one”). Inattentive to this guidance, today’s decision elides entirely the distinction between the sincerity of a challenger’s re ligious belief and the substan

tiality of the burden placed on the challenger. Undertaking the inquiry that the Court forgoes, I would
conclude that the connection between the families’ reli

gious objections and the contraceptive coverage require

ment is too attenuated to rank as substantial. The re

-23 Cite as: 573 U. S. ____ (2014)

G INSBURG

, J., dissenting

quirement carries no command that Hobby Lobby or Con

estoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under com

prehensive health plans. Those plans, in order to comply with the ACA, see supra, at 3–6, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services. Importantly, the decisions whether to claim benefitsunder the plans are made not by Hobby Lobby or Conestoga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “[n]o individual decision by an employee and her physi

cian—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employ

er’s] decision or action.” Grote v. Sebelius , 708 F. 3d 850, 865 (CA7 2013) (Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be “sub

stantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will notbe propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she
consults.

3
Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage24 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contra

ception coverage enables wome n to avoid the health prob

lems unintended pregnancies may visit on them and their children. See IOM Report 102–107. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. See Brief for Ameri

can College of Obstetricians and Gynecologists et al. as
Amici Curiae 14–15. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain. Brief for Ovarian
Cancer National Alliance et al. as Amici Curiae 4, 6–7, 15– 16; 78 Fed. Reg. 39872 (2013); IOM Report 107. That Hobby Lobby and Cone stoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests. Notably, the corpora

tions exclude intrauterine devices (IUDs), devices signifi

cantly more effective, and si gnificantly more expensive than other contraceptive methods. See id., at 105. 22 Moreover, the Court’s reasoning appears to permit com

mercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contra

ceptives. See Tr. of Oral Arg. 38–39 (counsel for Hobby Lobby acknowledged that his “argument . . . would apply just as well if the employer said ‘no contraceptives’ ” (in

ternal quotation marks added)). Perhaps the gravity of the interests at stake has led the

——————

22 IUDs, which are among the most re liable forms of contraception, generally cost women more than $1,000 when the expenses of the office visit and insertion procedure are ta ken into account. See Eisenberg, McNicholas, & Peipert, Cost as a Barrier to Long-Acting Reversible Contraceptive (LARC) Use in Adolescents, 52 J. Adolescent Health S59, S60 (2013). See also Winner et al ., Effectiveness of Long-Acting Re

versible Contraception, 366 New Eng. J. Medicine 1998, 1999 (2012).25 Cite as: 573 U. S. ____ (2014)

G INSBURG

, J., dissenting

Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. See

ante, at 40. 23 It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage, Brief for Guttmacher
Institute et al. as Amici Curiae 16; that almost one-third of women would change their contraceptive method if costs were not a factor, Frost & Da rroch, Factors Associated With Contraceptive Choice and Inconsistent Method Use, United States, 2004, 40 Perspectives on Sexual & Repro

ductive Health 94, 98 (2008); and that only one-fourth of women who request an IUD actually have one inserted after finding out how expensive it would be, Gariepy,Simon, Patel, Creinin, & Schwarz, The Impact of Out-ofPocket Expense on IUD Utilization Among Women With Private Insurance, 84 Contraception e39, e40 (2011). See also Eisenberg, supra, at S60 (recent study found that women who face out-of-pocket IUD costs in excess of $50 were “11-times less likely to obtain an IUD than women who had to pay less than $50”); Postlethwaite, Trussell, Zoolakis, Shabear, & Petitti, A Comparison of Contracep

tive Procurement Pre- and Post-Benefit Change, 76 Con

traception 360, 361–362 (2007) (when one health system eliminated patient cost sharing for IUDs, use of this form of contraception more than doubled). Stepping back from its assumption that compelling interests support the contrace ptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contra ceptive coverage, the Court

——————

23 Although the Court’s opinion make s this assumption grudgingly,

see ante, at 39–40, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the he alth of female employees.” Ante, at 2 (opinion of K ENNEDY , J.).26 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

suggests, Congress would not have created these exclu

sions. See ante, at 39–40. Federal statutes often include exemptions for small employers, and such provisions have never been held to
undermine the interests served by these statutes. See,

e.g., Family and Medical Leave Act of 1993, 29 U. S. C. §2611(4)(A)(i) (applicable to employers with 50 or more employees); Age Discrimination in Employment Act of 1967, 29 U. S. C. §630(b) (originally exempting employers with fewer than 50 employees, 81 Stat. 605, the statute now governs employers with 20 or more employees); Amer

icans With Disabilities Act, 42 U. S. C. §12111(5)(A) (ap

plicable to employers with 15 or more employees); Title VII, 42 U. S. C. §2000e(b) (originally exempting employers with fewer than 25 employees, see Arbaugh v. Y & H Corp. , 546 U. S. 500, 505, n. 2 (2006), the statute now governs employers with 15 or more employees). The ACA’s grandfathering provision, 42 U. S. C. §18011, allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive cov

erage or other preventive servic es provisions). Once speci

fied changes are made, grandfathered status ceases. See 45 CFR §147.140(g). Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by the District Court, Hobby Lo bby’s counsel explained that the “grandfathering requirements mean that you can’t make a whole menu of changes to your plan that involve things like the amount of co-pays, the amount of co

insurance, deductibles, that sort of thing.” App. in No. 13– 354, pp. 39–40. Counsel acknowledged that, “just because of economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over
time.” Id., at 40. 24 The percentage of employees in grand

-

——————

24 Hobby Lobby’s amicus National Religious Broadcasters similarly27 Cite as: 573 U. S. ____ (2014)

G INSBURG

, J., dissenting

fathered plans is steadily declining, having dropped from 56% in 2011 to 48% in 2012 to 36% in 2013. Kaiser Family Foundation & Health Research & Educ. Trust, Employer Benefits 2013 Annual Survey 7, 196. In short, far from ranking as a categorical exemption, the grandfathering provision is “temporary, intended to be a means for gradu

ally transitioning employers into mandatory coverage.”
Gilardi , 733 F. 3d, at 1241 (Edwards, J., concurring in part and dissenting in part). The Court ultimately acknowledges a critical point: RFRA’s application “ must take adequate account of the burdens a requested accommodation may impose on non

beneficiaries.” Ante, at 42, n. 37 (quoting Cutter v. Wilkinson , 544 U. S. 709, 720 (2005); emphasis added). No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contra

ceptive coverage requirement wa s designed to protect. Cf.

supra, at 7–8; Prince v. Massachusetts , 321 U. S. 158, 177 (1944) (Jackson, J., dissenting) (“[The] limitations which of necessity bound religious freedom . . . begin to operate whenever activities begin to affect or collide with liberties of others or of the public.”).

4
After assuming the existence of compelling government interests, the Court holds that the contraceptive coverage requirement fails to satisfy RF RA’s least restrictive means
test. But the Government has shown that there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ relig ious objections to providing

—————— states that, “[g]iven the nature of employers’ needs to meet changing economic and staffing circumstances, and to adjust insurance coverage accordingly, the actual benefit of the ‘grandfather’ exclusion is de

minimis and transitory at best.” Brief for National Religious Broad

casters as Amicus Curiae in No. 13–354, p. 28.28 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA’s contraceptive covera ge requirement, to ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and well being. A “least restrictive means” cannot require employ

ees to relinquish benefits accorded them by federal law in
order to ensure that thei r commercial employers can adhere unreservedly to their religious tenets. See supra, at 7–8, 27. 25 Then let the government pay (rather than the employees who do not share their employer’s faith), the Court sug

gests. “The most straightfo rward [alternative],” the Court asserts, “would be for the Gove rnment to assume the cost of providing . . . contraceptives . . . to any women who are unable to obtain them under their health-insurance poli

cies due to their employers’ religious objections.” Ante, at

41. The ACA, however, require s coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logisti

cal and administrative obstacles.” 78 Fed. Reg. 39888. Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated. Ibid. More

over, Title X of the Public Health Service Act, 42 U. S. C. §300 et seq. , “is the nation’s only dedicated source of federal

——————

25 As the Court made clear in Cutter , the government’s license to grant religion-based exemptions fr om generally applicable laws is constrained by the Establishment Clause. 544 U. S., at 720–722. “[W]e are a cosmopolitan nation made up of people of almost every conceiva

ble religious preference,” Braunfeld , 366 U. S., at 606, a “rich mosaic of religious faiths,” Town of Greece v. Galloway , 572 U. S. ___, ___ (2014) (K

AGAN , J., dissenting) (slip op., at 15). Consequently, one person’s right to free exercise must be kept in harmony with the rights of her fellow citizens, and “some religious practices [must] yield to the com

mon good.” United States v. Lee , 455 U. S. 252, 259 (1982).29 Cite as: 573 U. S. ____ (2014)

G INSBURG

, J., dissenting

funding for safety net family planning services.” Brief for National Health Law Program et al. as Amici Curiae

23. “Safety net programs like Title X are not designed to
absorb the unmet needs of . . . insured individuals.” Id., at

24. Note, too, that Congress declined to write into law the preferential treatment Hobby Lobby and Conestoga de

scribe as a less restrictive alternative. See supra, at 6. And where is the stopping point to the “let the govern

ment pay” alternative? Suppose an employer’s sincerely held religious belief is offend ed by health coverage of vaccines, or paying the minimum wage, see Tony and
Susan Alamo Foundation v. Secretary of Labor , 471 U. S. 290, 303 (1985), or according women equal pay for sub

stantially similar work, see Dole v. Shenandoah Baptist
Church , 899 F. 2d 1389, 1392 (CA4 1990)? Does it rank as

a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? 26 Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterp rises of the accommodation already afforded to nonprofit religion-based organizations.
See ante, at 3–4, 9–10, 43–45. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestog a’s] religious belief.” Ante, at

44. I have already discussed the “special solicitude” gen

erally accorded nonprofit relig ion-based organizations that exist to serve a community of believers, solicitude never
before accorded to commerci al enterprises comprising employees of diverse faiths. See supra, at 14–17. Ultimately, the Court hedges on its proposal to align for

profit enterprises with nonprofit religion-based organiza

-

——————

26 Cf. Ashcroft v. American Civil Liberties Union , 542 U. S. 656, 666 (2004) (in context of First Amendm ent Speech Clause challenge to a content-based speech restriction, courts must determine “whether the challenged regulation is the least restrictive means among available

, effective alternatives” (emphasis added)).30 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

tions. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Ante, at 44. Counsel for Hobby Lobby was similarly noncommitta l. Asked at oral argu

ment whether the Court-prop osed alternative was ac

ceptable, 27 counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.” Tr. of Oral Arg. 86–87. Conestoga suggests that, if its employees had to acquire and pay for the contraceptives (to which the corporation objects) on their own, a tax credit would qualify as a less
restrictive alternative. See Brief for Petitioners in No. 13– 356, p. 64. A tax credit, of course, is one variety of “let the government pay.” In addition to departing from the exist

ing employer-based system of health insurance, Conesto

ga’s alternative would require a woman to reach into her own pocket in the first instance, and it would do nothing for the woman too poor to be aided by a tax credit. In sum, in view of what Congress sought to accomplish,

——————

27 On brief, Hobby Lobby and Conestoga barely addressed the exten

sion solution, which would bracket commercial enterprises with non

profit religion-based organizations for religious accommodations pur

poses. The hesitation is understanda ble, for challenges to the adequacy of the accommodation accorded relig ious nonprofit organizations are currently sub judice . See, e.g., Little Sisters of the Poor Home for the Aged v. Sebelius , ___ F. Supp. 2d ___, 2013 WL 6839900 (Colo., Dec. 27, 2013), injunction pending appeal gr anted, 571 U. S. ___ (2014). At another point in today’s decision, the Court refuses to consider an argument neither “raised below [nor] advanced in this Court by any party,” giving Hobby Lobby and Conestoga “[no] opportunity to respond to [that] novel claim.” Ante, at 33. Yet the Court is content to decide this case (and this case only) on the ground that HHS could make an accommodation never suggested in th e parties’ presentations. RFRA cannot sensibly be read to “requir[e] the government to . . . refute each and every conceivable alternative regulation,” United States v. Wilgus

, 638 F. 3d 1274, 1289 (CA10 2011), especially where the alternative on which the Court seizes was not pressed by any challenger.31 Cite as: 573 U. S. ____ (2014)

G INSBURG

, J., dissenting

i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the prof

fered alternatives would sati sfactorily serve the compel

ling interests to which Congress responded.

IV
Among the pathmarking pre- Smith decisions RFRA preserved is United States v. Lee , 455 U. S. 252 (1982). Lee, a sole proprietor engaged in farming and carpentry, was a member of the Old Order Amish. He sincerely believed that withholding Social Security taxes from his employees or paying the employer’s share of such taxes would violate the Amish faith. This Court held that, although the obligations imposed by the Social Security system conflicted with Lee’s religious beliefs, the burden
was not unconstitutional. Id., at 260–261. See also id., at 258 (recognizing the important governmental interest in providing a “nationwide . . . comprehensive insurance system with a variety of bene fits available to all partici

pants, with costs shared by employers and employees”). 28 The Government urges that Lee should control the chal

lenges brought by Hobby Lobby and Conestoga. See Brief for Respondents in No. 13–356, p. 18. In contrast, today’s
Court dismisses Lee as a tax case. See ante, at 46–47. Indeed, it was a tax case and the Court in Lee homed in on “[t]he difficulty in attempting to accommodate religious beliefs in the area of taxation.” 455 U. S., at 259.
But the Lee Court made two key points one cannot confine to tax cases. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own con

duct as a matter of conscience and faith are not to be

——————

28 As a sole proprietor, Lee was subject to personal liability for violat

ing the law of general application he opposed. His claim to a religion

based exemption would have been ev en thinner had he conducted his business as a corporation, thus avoiding personal liability.32 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

superimposed on statutory schemes which are binding on others in that activity.” Id., at 261. The statutory scheme of employer-based comprehensive health coverage in

volved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” Ibid. 29 No
doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contra

ceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door, 30 at least in the absence of directions from the Legislature or Administration to do so. Why should decisions of this order be made by Congress or the regulatory authority, and not this Court? Hobby Lobby and Conestoga surely do not stand alone as com

mercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc. , 256 F. Supp.

——————

29 Congress amended the Social Security Act in response to Lee . The amended statute permits Amish sole proprietors and partnerships (but not Amish-owned corporations) to ob tain an exemption from the obliga

tion to pay Social Security taxe s only for employees who are co

religionists and who likewise seek an exemption and agree to give up their Social Security benefits. See 26 U. S. C. §3127(a)(2), (b)(1). Thus, employers with sincere religious beliefs have no right to a religion

based exemption that would depriv e employees of Social Security benefits without the employee’s co nsent—an exemption analogous to the one Hobby Lobby and Conestoga seek here.

30 Cf. Tony and Susan Alamo Foundation v. Secretary of Labor , 471
U. S. 290, 299 (1985) (disallowing religion-based exemption that “would undoubtedly give [the commercial enterprise seeking the exemption] and similar organizations an adva ntage over their competitors”).33 Cite as: 573 U. S. ____ (2014)

G INSBURG

, J., dissenting

941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, 377 F. 2d 433 (CA4 1967), aff ’d and modified on other grounds, 390 U. S. 400 (1968); In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn. 1985) (born-again Christians who owned closely held, for

profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her fath er’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986); Elane Photography, LLC v. Willock , 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”? Ante, at 37. Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills co ated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian34 BURWELL v. HOBBY LOBBY STORES, INC.

G INSBURG

, J., dissenting

Scientists, among others)? 31 According to counsel for Hobby Lobby, “each one of these cases . . . would have to
be evaluated on its own . . . apply[ing] the compelling
interest-least restrictive alternat ive test.” Tr. of Oral Arg.

6. Not much help there for the lower courts bound by today’s decision. The Court, however, sees nothing to worry about. To

day’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other cove rage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” Ante, at 46. But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Wom

en’s Health Amendment. There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative mer

its of differing religious claims,” Lee , 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approv

ing some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Ibid. The Court, I fear,

——————

31 Religious objections to immunization programs are not hypothet

ical. See Phillips v. New York , ___ F. Supp. 2d ___, 2014 WL 2547584 (EDNY, June 5, 2014) (dismissing free exercise challenges to New York’s vaccination practices); Liberty Counsel, Compulsory Vaccina

tions Threaten Re ligious Freedom (2007), av ailable at h ttp://www.lc.org/
media/9980/attachments /memo_vaccination.pdf.35 Cite as: 573 U. S. ____ (2014)

G INSBURG

, J., dissenting

has ventured into a minefield, cf. Spencer v. World Vision,

Inc. , 633 F. 3d 723, 730 (CA9 2010) (O’Scannlain, J., con

curring), by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organiza

tions formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged . . . substantially in the exc hange of goods or services for money beyond nominal amounts.” See id., at 748 (Klein

feld, J., concurring).

* * *
For the reasons stated, I would reverse the judgment of the Court of Appeals for the Tenth Circuit and affirm the judgment of the Court of Appeals for the Third Circuit._________________

_________________ 1 Cite as: 573 U. S. ____ (2014)

B REYER and K AGAN

, JJ., dissenting



## SUPREME COURT OF THE UNITED STATES

Nos. 13–354 and 13–356

SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL ., PETITIONERS

13–354 v. HOBBY LOBBY STORES, INC., ET AL

.

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

AND

CONESTOGA WOOD SPECIALTIES CORPORATION

ET AL ., PETITIONERS

13–356 v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL

.

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

[June 30, 2014]

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