- i - PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation; LITTLE SISTERS OF THE POOR, BALTIMORE, INC., a Maryland non-profit corporation, by themselves and on beha lf of all others similarly situated; CHRISTIAN BROTHERS SERVICES, a New Mexico non-profit corporation; CHRISTIAN BROTHERS EMPLOYEE BENEFIT TRUST, Plaintiffs - Appellants,

v. SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; THOMAS E. PEREZ, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACOB J. LEW, Secretary of the United States Department of the Treasury; UNITED STATES DEPA RTMENT OF THE TREASURY, Defendants - Appellees.

––––––––––––––––––– –––––––––––––––– SOUTHERN NAZARENE UNIVERSITY; OKLAHOMA WESLEY AN UNIVERSITY; OKLAHOMA BAPTIST UNIVERSITY; MID-AMERICA CHRISTIAN UNIVERSITY; REACHING SOULS INTERNATIONAL, INC., an Oklahoma not No. 13-1540 FILED United States Court of Appeals Tenth Circuit 

### July 14, 2015
Elisabeth A. Shumaker Clerk of Court- ii -for profit corporation; TRUETTMCCONNELL COLLEGE, INC., a Georgia nonprofit corporation, by themselves and on behalf of all others similarly situated; GUIDESTONE FINANCIAL RESOURCES OF THE SOUTHERN BAPTIST CONVENTION, a Texas nonprofit corporation, Plaintiffs - Appellees.

v. SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; THOMAS E. PEREZ, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACOB J. LEW, Secretary of the United States Department of the Treasury; UNITED STATES DEPA RTMENT OF THE TREASURY, Defendants - Appellants.

------------------------------ 67 CATHOLIC THEOLOGIANS AND ETHICISTS; ALABAMA PHYSICIANS FOR LIFE; AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS & GYNECOLOGISTS; AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN BIBLE SOCIETY; AMERICAN CENTER FOR LAW AND JUSTICE; AMERICAN CIVIL LIBERTIES UNION OF COLORADO; AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA; AMERICAN CIVIL LIBERTIES UNION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME); Nos. 14-6026 & 14-6028- iii - AMERICAN PUBLIC HEALTH ASSOCIATION; AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; ASIAN & PA CIFIC ISLANDER AMERICAN HEALTH FORUM; ASIAN AMERICANS ADVANCING JUSTICE | AAJC; ASIAN AMERICANS ADVANCING JUSTICE | LOS ANGELES; ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS; ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; ASSOCIATION OF GOSPEL RESCUE MISSIONS; BLACK WOMEN'S HEALTH IMPERATIVE; CALIFORNIA WOMEN'S LAW CENTER, NATIONAL WOMEN'S LAW CENTER; CALIFORNIA WOMEN'S LAW CENTER; CATHOLIC MEDICA L ASSOCIATION; CHRISTIAN LEGAL SOCIETY; CHRISTIAN MEDICA L ASSOCIATION; CHRISTIE'S PLACE; CONCERNED WOMEN FOR AMERICA; DR. R. ALBERT MOHLER, JR.; ETHI CS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; FEMINIST MAJORITY FOUNDATION; FORWARD TOGETHER; HIV LAW PROJECT; IBIS REPRODUCTIVE HEALTH; INSTITUTIONAL RELIGIOUS FREEDOM ALLIANCE AND CHRISTIAN LEGAL SOCIETY; INTERNATIONAL MISSION BOARD OF THE SOUTHERN BAPTIST CONVENTION; IPAS; LEGAL MOMENTUM; LIBERTY COUNSEL; LIBERTY UNIVERSITY; LIBERTY, LIFE, AND LAW FOUNDATION; LUTHERAN CHURCH - MISSOURI SYNOD; MERGER WATCH; NARAL PRO-CHOICE AMERICA; NARAL PRO-CHOICE COLORADO; NARAL PRO-CHOICE WYOMING; NATIONAL ASIAN PACIFIC AMERICAN WOMEN'S FORUM;- iv - NATIONAL ASSOCIATION OF CATHOLIC NURSES; NATIONAL ASSOCIATION OF EVANGELICALS; NATIONAL ASSOCIATION OF PRO LIFE NURSES; NATIONAL CATHOLIC BIOETHICS CENTER; NATIONAL FAMILY PLANNING & REPRODUCTIVE HEALTH ASSOCIATION; NATIONAL HEALTH LAW PROGRAM; NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL ORGANIZATION FOR WOMEN (NOW) FOUNDATION; NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES; NATIONAL WOMEN AND AIDS COLLECTIVE; NATIONAL WOMEN'S HEALTH NETWORK; NATIONAL WOMEN'S LAW CENTER; PLANNED PARENTHOOD ASSOCIATION OF UTAH; PLANNEDPARENTHOOD OF KANSAS AND MIDMISSOURI; PLANNE D PARENTHOOD OF THE HEARTLAND; PLANNED PARENTHOOD OF THE ROCKY MOUNTAINS, INC.; POPULATION CONNECTION; PRISON FELLOWSHIP MINISTRIES; RAISING WOMEN'S VOICES FOR THE HEALTH CARE WE NEED; SERVICE EMPLOYEES INTERNATIONAL UNION (SEIU); SEXUALITY INFORMATION AND EDUCATION COUNCIL OF THE U.S. (SIECUS); SOUTHERN BAPTIST THEOLOGICAL SEMINARY; UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, Amici Curiae.

________________ _________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1: 13-CV-02611-WJM-BNB) &- v - THE UNITED STATES DIST RICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. Nos. 5:13-CV-01015 -F & 5:13-CV-01092-D)

________________ _________________ Mark L. Rienzi, Becket Fund for Religious Liberty, Wash ington, DC (Daniel Blomberg and Ad P le Auxier Keim, Becket F und for Religious Liberty, Washington, DC; Carl C. Scherz and Seth Roberts, Locke Lord LL P, Dallas, Texas; and Kevin C. Walsh, University of Richmond Law School, Richmond, Virginia, with him on the briefs), appearing for Little Sisters of the Poor Home for the Aged, Little Sisters of the Poor, Baltimore, Inc., Christian Brot hers Services, Christian Brot hers Employee Benefit Trust, Reaching Souls International, Inc., True tt-McConnell College, Inc., and GuideStone Financial Resources of the Southern Baptist Convention. Adam C. Jed, Attorney, Appellate Staff, Ci vil Division (Stuart F. Delery, Assistant Attorney General; Sanford C. Coats and John F. Walsh, United States Attorneys; Beth S. Brinkmann, Deputy Assistant Attorney General; Mark B. Stern, Alisa B. Klein, Patrick G. Nemeroff, and Megan Barbero, Attorneys, Ap pellate Staff Civil Division, with him on the briefs), United States Department of Jus tice, Washington, DC, appearing for Sylvia Mathews Burwell, United States Department of Health and Human Services, Thomas E. Perez, Jacob J. Lew, and United Stat es Department of the Treasury. Gregory S. Baylor, Allian ce Defending Freedom, Washi ngton, DC (Matthew W. Bowman, Alliance Defending Freedom, Washington, DC, Da vid A. Cortman, Alliance Defending Freedom, Lawrenceville, Georgia, a nd Kevin H. Theriot, Alliance Defending Freedom, Leawood, Kansas, with him on the briefs), appearing for Southern Nazarene University, Oklahoma Wesley an University, Oklahoma Ba ptist University, and MidAmerica Christian University.

________________ _________________ Before MATHESON , McKAY , and BALDOCK , Circuit Judges.

________________ _________________ MATHESON , Circuit Judge.

________________ _________________

TABLE OF CONTENTS Glossary ...................................................................................................................... .................. vii I. Introduction .................................................................................................................. ........ 1- vi - II. Hobby Lobby and this case .................................................................................................. 3 III. Background .................................................................................................................... ...... 4 A. Regulatory Background ................................................................................................ 4

1. The ACA Mandate and the Religious Employer Exemption ............................................... 4 2. The Accommodation Scheme for Religi ous Non-Profit Organizations .............................. 7

a. EBSA Form 700 ................................................................................................................... 9 b. Alternative notice ............................................................................................................... 11 3. The Mechanics of the Accommodation for Insu red Plans, Self-Insured Plans, and SelfInsured Church Plans .......................................................................................................... .... 13

a. Insured plans ...................................................................................................................... 14 b. Self-insured plans ............................................................................................................... 15

c. Self-insured church plans .................................................................................................. 17 d. Legal obligation to provide co verage after the accommodation ....................................... 17 B. The Plaintiffs .............................................................................................................. 1 8

1. Little Sisters of the Poor .................................................................................................... 18 2. Southern Nazarene ............................................................................................................. 20 3. Reaching Souls ................................................................................................................... 22 C. Procedural History ...................................................................................................... 23

1. Little Sisters of the Poor .................................................................................................... 23 2. Southern Nazarene ............................................................................................................. 25 3. Reaching Souls ................................................................................................................... 26 IV. Unusual Nature of Plaintiffs’ Claim .................................................................................. 27 V. RFRA .......................................................................................................................... ....... 30 A. Legal Background....................................................................................................... 33

1. Standard of Review ............................................................................................................ 33 2. RFRA and Free Exercise ................................................................................................... 34 3. Elements of RFRA Analysis .............................................................................................. 35 4. Courts Determine Substantial Burden ............................................................................... 36 5. Accommodations Can Lessen or Eliminate Burden .......................................................... 40 B. Substantial Burden Analysis ....................................................................................... 41

1. Plaintiffs’ RFRA Arguments ............................................................................................. 41 2. The Accommodation Scheme Eliminates Burdens on Religious Exercise ....................... 43 3. The Accommodation Scheme Does Not Impose a Substantial Burden ............................. 45

a. Opting out does not cause contraceptive coverage. .......................................................... 45- vii - b. No substantial burden from complicity .............................................................................. 66

c. No burden from ongoing requirements .............................................................................. 72 C. Strict Scrutiny ............................................................................................................. 7 5 D. Conclusion .................................................................................................................. 7 5 VI. First Amendment ............................................................................................................... 75 A. Free Exercise Clause .................................................................................................. 77

1. Legal Background .............................................................................................................. 78 2. The Mandate and Accommodation Scheme are Neutral ................................................... 79 3. The Mandate and Accommodation Scheme are Generally Applicable ............................. 79 4. The Mandate and Accommodation Sche me Have a Rational Basis .................................. 81 B. Establishment Clause .................................................................................................. 83

1. Organizational Distinctions Well- Established in Federal Law .......................................... 83 2. Organizational Distinctions and Re specting the Religion Clauses .................................... 85 3. Organizational Distinctions Compatible with Larson and Colorado Christian ................ 86 4. Plaintiffs’ Argument Based on th e Departments’ Rationale .............................................. 88 C. Free Speech Clause ..................................................................................................... 90

1. Compelled Speech ............................................................................................................. 91 2. Compelled Silence ............................................................................................................. 95 VII. Conclusion .................................................................................................................... ..... 95
GLOSSARY This opinion is heavily laden with terms from the applicable statute and regulations, types of health insurance arrange ments, and names of numerous entities. We appreciate the challenge this presents to the reader and provide this glossary to help navigate the opinion. Legal and Regulatory Terms: ACA: The Affordable Care Act, whic h encompasses the Patient Protection and Affordable Care Act, enacted on March 23, 2010, and the Health Care and Education Reconciliation Act, enact ed on March 30, 2010. Accommodation scheme: A regulatory mechan ism that allows religious non-profit organizations to relieve themselves of their obligation to provide contraceptive- viii - coverage for employees by either (a) sending a form to their health insurance issuer or third-party administrator or (b) sending a notification to th e Department of Health and Human Services. ANPRM: Advance Notice of Proposed Rule making, which an administrative agency may issue to notify the public it is contem plating rulemaking and to invite comments. Departments: The Department of Health an d Human Services, Depa rtment of Labor, and Department of the Treasury, whic h collectively implement the ACA. EBSA: The Employee Benefits Security Administration, an agency within the Department of Labor. ERISA: The Employee Retirement Income Secu rity Act, codified at 29 U.S.C. § 1001 et seq ., which is a federal law that sets mi nimum standards for certain employersponsored benefit plans. Form 700: A standardized notification that religious non-profit organizations may send to their health insurance i ssuer or third party admini strator under the accommodation scheme to self-certify they object to providing contraceptive coverage. HHS: The Department of Health and Hu man Services, which is one of the three departments tasked with implementing the ACA and contraceptive coverage requirement. HRSA: The Health Resources and Services Administration, an agency within HHS, which issued guidelines requiring covera ge of all FDA-approved contraceptive methods under the ACA. IOM: The Institute of Medicine, an inde pendent body that re viewed evidence on women’s preventive services an d issued a report used by th e HRSA in formulating its guidelines. IRC: The Internal Revenue Co de, codified at 26 U.S.C. § 1 et seq ., which is a comprehensive compilation of the federal tax laws. Mandate: Regulations enacted under th e ACA requiring employer-sponsored group health plans to cover contraceptive services for women as a form of preventive care. RFRA: The Religious Freedom Restoration Act, codified at 42 U.S.C. § 2000bb-1 et seq ., which states that laws that substantially burden a person ’s exercise of religion are only permissible if they are the least rest rictive means of furthering a compelling governmental interest.- ix - RLUIPA: The Religious Land Use and Ins titutionalized Persons Act, codified at 42 U.S.C. § 2000cc et seq ., which states that laws that substantially burden religious exercise through land use restrictions or re strictions on prisoners are only permissible if they are the least restrictive means of furthering a compelling governmental interest. Religious employers: As define d by reference to §§ 6033(a)(3)(A )(i) or (iii) of the IRC, employers that are organized and operate as non-profit entities and are churches, their integrated auxiliaries, conven tions or associations of c hurches, or the exclusively religious activities of any religious order. Religious non-profit organiza tions: Organizations that do not qualify as religious employers but are eligible for an acco mmodation from the contraceptive coverage requirement because they have religious objections to prov iding contraceptive coverage, are organized and operate as non-profit entities, hold themselves out as religious organizations, and self-certify that th ey satisfy these criteria. The Plaintiffs in these cases are religious non-profit organizations. Health Insurance Terms: Group health plan: A benef it plan established or mainta ined by an employer that provides health insurance to employees and their dependents either directly—a selfinsured group health plan—or through a he alth insurance issuer—an insured group health plan. Health insurance issuer: A he alth insurance company, servic e, or organization that must be licensed to engage in the insurance business and is subj ect to state laws regulating insurance. Insured group health plan: A benefit plan in which the employer employs a health insurance issuer to assu me the risk of provid ing health insurance. Plan participants and beneficiaries: Individua ls who are covered by a group health plan. Self-insured group health plan: A benefit plan in which the employer assumes the risk of providing health insurance. Self-insured church plan: A self-insured group health plan established by a church or association of churches covering the church or association’s employees, which is not subject to regulation under ERISA unless it has elected to op t in to ERISA’s provisions. TPA: A third-party administrator, which is an entity that processe s insurance claims and provides administrative services for employers with self-insured group health plans.- x - Plaintiffs and Related Entities: Little Sisters of the Poor: Little Sisters of the Poor: A religious non-pr ofit organization that pr ovides health care to employees through the Christian Br others Employee Benefit Trust. Christian Brothers Employee Benefit Trust: A se lf-insured church plan that is not subject to ERISA and uses Christian Br others Services as its TPA. Christian Brothers Services: The TPA fo r the Christian Brothers Employee Benefit Trust. Southern Nazarene: Southern Nazarene University: A religious non- profit organization that is self-insured up to $100,000 and provides health care to employees through Blue Cross Blue Shield for claims above $100,000. Oklahoma Baptist University: A religious n on-profit organization insured by Blue Cross Blue Shield of Oklahoma. Oklahoma Wesleyan Univers ity: A religious non-prof it organization insured by Community Care of Oklahoma. Mid-America Christian University: A relig ious non-profit organi zation that provides health care to employees th rough plans provided by GuideS tone Financial Resources. Reaching Souls: Reaching Souls: A religious non-profit organizati on that provides health care to employees through the GuideStone Plan. Truett-McConnell College: A re ligious non-profit organization that provides health care to employees through the GuideStone Plan. GuideStone Financial Resources: A religi ous non-profit organization that sponsors the GuideStone Plan and has arranged for TPAs to provide claims administration under that plan. GuideStone Plan: A self-insured church pl an that is not subject to ERISA and uses entities like Connecticut General Life In surance Company, Highmark Health Services, and Express Scripts, Inc. as its TPAs.- 1 - I. INTRODUCTION When Congress passed the Af fordable Care Act (“ACA” ) in 2010, it built upon the widespread use of em ployer-based health insurance in the United States. 1 The ACA and its implementing regulations require employers who provide health insurance coverage to their employees to include cove rage for certain types of preventive care without cost to the insured. The appeals before us concern the regulations that require group health plans to cover contraceptive se rvices for women as a form of preventive care (“Mandate”). 2 In response to religious concerns, the Departments implementing the ACA— Health and Human Services (“HHS”), Labo r, and Treasury—adopted a regulation that exempts religious employers—churches and th eir integrated auxiliaries—from covering contraceptives. When religi ous non-profit organi zations complained about their omission from this exemption, the Departments adopted a regulation that allows them to opt out of

1 A majority of the noneld erly population in the Unite d States receives health insurance as a job benefit through an employer. See Melissa Majerol, Vann Newkirk & Rachel Garfield, The Uninsured: A Primer – Key Fact s About Health Insurance and the Uninsured in America , The Kaiser Commission on Medicai d and the Uninsured, 1 (Jan. 2015), http://files.kff.org/a ttachment/the-uninsured-a-pr imer-key-facts-about-healthinsurance-and-the-uninsure d-in-america-primer.

2 We use “Mandate” as shorthand for the ACA’s employer mandate, which requires employers who offer health benefits to comply with the coverage requirements detailed in the ACA and its im plementing regulations. This Mandate is distinct from the individual mandate at issue in National Federation of Independent Business v. Sebelius , 132 S. Ct. 2566 (2012), which generally re quires individuals to maintain health insurance.- 2 - providing, paying for, or fac ilitating contraceptive coverage. 3 Under this regulation, a religious non-profit organization can opt out by delivering a form to their group health plan’s health insurance issu er or third-party administra tor (“TPA”) or by sending a notification to HHS. The Plaintiffs in the cases before us are religious non- profit organizations. They contend that complying with the Mandate or the accommodation scheme imposes a substantial burden on their religious exercise . The Plaintiffs argue the Mandate and the accommodation scheme violate the Religious Freedom Restoration Act (“RFRA”) and the Religion and Speech Clauses of the First Amendment. 4 Although we recognize and respect the sincerity of Plaintiffs’ beliefs and arguments, we conclude the accommodation sc heme relieves Plaintiffs of their obligations under the Mandate and does not s ubstantially burden thei r religious exercise under RFRA or infringe upon their First Amendment rights. Exercising jurisdiction

3 Plaintiffs object to the term “opt out” because their accommodation from the Mandate involves an act on their part—self-certif ication—that they deem objectionable. We believe “opt out” is accurate. Se lf-certifying for the accommodation expressly relieves Plaintiffs of their obligation to provide, pay for, or fa cilitate contraceptive coverage, and does so withou t substantially burdening thei r religious exercise. Under these conditions, the self-certification is accura tely characterized as an “opt out.” By definition, all opt-out mechanisms require so me affirmative act by ob jecting parties.

4 RFRA applies to all subsequent federal statutes absent a specific exemption by Congress. See 42 U.S.C. § 2000bb-3(b) (“Federal st atutory law adopted after November 16, 1993, is subject to this ch apter unless such law explicitly excludes such application by reference to this chapter.”). The ACA, en acted in 2010, did not contain a specific exemption and is subject to RFRA. See Hobby Lobby Stores , Inc. v. Sebelius , 723 F.3d 1114, 1157 (10th Cir. 2013).- 3 - under 28 U.S.C. § 1292(a), we affirm the district court’s denial of a preliminary injunction to the plaintiffs in Little Sisters of the Poor Ho me for the Aged v. Sebelius , 6 F. Supp. 3d 1225 (D. Colo . 2013), and reverse the district courts’ grants of a preliminary injunction to the plaintiffs in Southern Nazarene University v. Sebelius , No. CIV-13- 1015-F, 2013 WL 6804 265 (W.D. Okla. Dec. 23, 2013), and Reaching Souls International, Inc. v. Burwell , No. CIV-13-1092-D, 2013 WL 6804259 (W.D. Okla. Dec. 20, 2013).
II. HOBBY LOBBY AND THIS CASE Last year, the Supreme Court decided Burwell v. Hobby Lobby Stores, Inc. , 134 S. Ct. 2751 (2014), in which closely-held fo r-profit corporations challenged the Mandate under RFRA. The difference between Hobby Lobby and this case is significant and frames the issue here. In Hobby Lobby , the plaintiff for-profit corporations objected on religious grounds to providing contraceptive coverage and could choose only between (1) complying with the ACA by pr oviding the coverage or (2) not complying and paying significant penalties. Id. at 2759-60. In the cases befo re us, the plaintiff religious nonprofit organizations can avail themselves of an accommodation that allows them to opt out of providing contraceptive co verage without penalty. Pl aintiffs contend the process to opt out substantially burde ns their religious exercise. In other words, unlike in Hobby Lobby , the Plaintiffs do not challenge the general obligation under the ACA to pr ovide contraceptive coverage. They instead challenge the process they must follow to ge t out of complying with that obligation. The Plaintiffs do- 4 - not claim the Departments have not tried to accommodate their religious concerns. They claim the Departments’ attempt is inadequate because the acts required to opt out of the Mandate substantially burden their religious ex ercise. As we discuss more fully below, however, the accommodation relieves Plaintiffs of their obligation to provide, pay for, or facilitate contraceptive coverage, and does so without substantially burdening their religious exercise.
III. BACKGROUND We begin by providing background inform ation on the ACA and its implementing regulations, the Plaintiffs objecting to th e accommodation scheme, and the procedural history of the three cases before us.
A. Regulatory Background The regulations at issue in these cases have evolved in significant ways since their initial promulgation. We review: (1) the exemption from the ACA’s contraceptive coverage requirement for churches and in tegrated auxiliaries, (2) the accommodation scheme for religious non-profit organi zations, and (3) the mechanics of the accommodation scheme for different types of group health plans.
1. The ACA Mandate and the Religious Employer Exemption Under the ACA, employer-sponsored gro up health plans must meet minimum coverage requirements. As part of these re quirements, both group he alth plans and health insurance issuers must cover preventive health care services and cannot require plan participants and beneficiaries to share the costs of these se rvices through co-payments,- 5 - deductibles, or co-insurance. 42 U.S.C. § 300 gg-13. On July 19, 2010, the Departments issued interim final rules implementing the AC A’s requirements for preventive services. Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Pa tient Protection and Affordable Care Act, 75 Fed. Reg. 41,726 (July 19, 2010). Among the services required by the ACA are preventive care and screenings for women “as provided for in comprehensive gui delines supported by the Health Resources and Services Administration” (“HRSA”), a fe deral agency within HHS. 42 U.S.C. § 300gg-13(a)(4). On August 1, 2011 , after receiving recommendations from the Institute of Medicine (“IOM”), the HRSA i ssued its guidelines fo r women’s preventive health services. The guidelines include cove rage of “[a]ll Food and Drug Administration [(“FDA”)] appr oved contraceptives, sterili zation procedures, and patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider. HRSA, Women’s Prev entive Services Guidelines, http://www.hrsa.gov/womensguidelines (last visited Mar. 25, 2015). In accordance with the HRSA ’s guidelines, the Departments require coverage of the full range of FDA-approve d contraceptive services. See 26 C.F.R. § 54.9815- 2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1 )(iv); 45 C.F.R. § 147.130(a)(1)(iv). Not all employers, however, are required to comply with th e Mandate. First, employers with 50 or fewer em ployees are exempt from the Mandate because they are not required to offer insurance under the ACA. See 26 U.S.C.- 6 - §§ 4980H(c)(2)(A ), 4980D(d). Second, “grandfathered” plans are exempt from the Mandate because the ACA allows individuals to temporarily maintain th e health coverage they possessed before the ACA was enacted. See 42 U.S.C. § 18011. 5 Third, and the most relevant here, is th e exemption for religious employers. In response to concerns from religious organiza tions, the Departments amended the interim final regulations to give the HRSA authority to exempt group health plans established or maintained by religious employers. See Group Health Plans and He alth Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621, 46,623 (A ug. 3, 2011). The Departments defined a “religious employer” as one that: “(1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization described in section 6033(a)(1) and section 6033(a)(3 )(A)(i) or (iii) of the [Internal Revenue] Code.” Id. The cited sections “refer to chur ches, their integrated auxiliaries, and conventions or associations of churches, as well as the exclusively religious activities of

5 The exception for grandfathered plans is temporary and transitional. A health plan loses its grandfathered status—and is subject to the Mandate—when it eliminates benefits, increases cost sharing requireme nts, or changes the terms of employer contributions. See 45 C.F.R. § 147.140(g). In 2011, 56 percent of individuals who receive health care from their employer were covered by grandfathe red plans; in 2014, only 26 percent were covered by grandfathered plans. See Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Bene fits: 2014 Annual Survey , 7 (2014), http://files.kff.org /attachment/2014-employer-healt h-benefits-survey-full-report.- 7 - any religious order.” Id. The Departments noted th e definition was intended “to reasonably balance the extensi on of any coverage of cont raceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.” Id

. 6 They invited comments on the pr oposed definition of “religious employer” and potential alternatives. Id

. The Departments received more than 200,000 respon ses to their request for comments from a variety of entities both su pporting and opposing expansion of the proposed exemption. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Pa tient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012). After reviewing these comments, they published final regulations on February 15, 2012, adopting their proposed definition of “religious employer.” Id. at 8727. They also created a one-year safe harbor for religious non-profit organizations, duri ng which the Departments woul d not enforce the Mandate against them. Id. at 8728.
2. The Accommodation Scheme for Relig ious Non-Profit Organizations In response to religious groups that we re dissatisfied with the scope of the proposed religious employer exemption, the Departments issued an advance notice of

6 A number of states have laws that require employers to cover contraceptive services but excuse some religious empl oyers from complying. The Departments developed their definition to accord with these existing state laws. See 76 Fed. Reg. at 46,623.- 8 - proposed rulemaking (“ANPRM”) in anticipa tion of creating additional accommodations for non-exempt religious non-profit organizati ons. Certain Preventive Services Under the Affordable Care Act, 77 Fe d. Reg. 16,501 (Mar. 21, 2012). After reviewing the comments received from the ANPRM, the De partments published proposed rules creating an accommodation for a wider range of religious non-pr ofit organizations. Coverage of Certain Preventive Services Unde r the Affordable Care Act, 78 Fed. Reg. 8456 (Feb. 6, 2013). The Departments received over 400,000 comments on the proposed rules, and finalized two notable changes. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870, 39, 871 (July 2, 2013). First, the Departments simplified and clarified the existing exempti on for religious employers by eliminating the first three elements of the definition, ther eby defining “religi ous employer” as “an employer that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the [Inte rnal Revenue] Code [(“IRC”)].” Id. at 39,874. Second, they created an accommodation for re ligious non-profit organizations that did not meet this simplified definition of a religious employer. Id. The regulations state a religious non- profit organization can receive this accommodation if it: (1) has religious objections to “providing coverage for some or all of the contraceptive services required to be covered” under the Mandate, (2) “is organized and operates as a nonprofit entity,” (3) “holds itself out as a religious organization,” and (4) “self-certifies that it satisfies the first three criteria.” Id . The- 9 - accommodation is available for both (1) insure d group health plans, under which an employer contracts with a health insurance issuer to assume the risk of providing benefits to employees, and (2) self-ins ured group health plans, und er which the employer itself assumes the risk of providing benefits to employees. Id. at 39,875-80. 7 As we explain below, religious non-profit organizations can self-certify their religious objection and receive the accommodation either by notifying their health insu rance issuer or TPA or by notifying HHS directly.

a. EBSA Form 700 To self-certify under the accommodation scheme, the Departments initially required religious non-profit organizations to use the Employee Benefits Security Administration’s (“EBSA”) Form 700 (“Form”). 8 Objecting organizations are relieved from complying with the Mand ate by delivering the executed Form to their health insurance issuer or TPA. Th e Form notifies the health insu rance issuer or TPA that the organization self-certifies as exempt fro m the Mandate because it has a religious objection to providing coverage for some or a ll contraceptive services to its employees, and identifies the relevant federal regulations under which the organization is permitted to opt out of that obligation. See Dep’t of Labor, EBSA Form 700 (Aug. 2014),

7 Employers with self-insured group h ealth plans typically employ a TPA to coordinate logistics and deliver benefits. Cong. Budget Office, Key Issues in Analyzing Major Health Insurance Proposals , 6 (Dec. 2008), http://www.cbo.gov/sites/defa ult/files/12-18-keyissues.pdf.

8 A copy of the Form appears at the end of this opinion.- 10 - http://www.dol.gov/ebsa/preventiveservicese ligibleorganizationcertificationform.doc (citing 26 C.F.R. § 54.9815-2713A(a); 29 C.F.R. § 2590.715-271 3A(a); 45 C.F.R. § 147.131(b)). The back of the Fo rm notifies TPAs of their obligations. 9 Form at 2. It informs the TPA that the eligible orga nization “[w]ill not act as the pl an administrator or claims administrator with respect to claims for c ontraceptive services, or contribute to the funding of contraceptive services .” Form at 2. It identifie s regulations requiring the TPA to provide contracepti ve coverage without cost shar ing to plan participants and beneficiaries if the TPA agrees to continue providing administrative services for a group health plan. Id. (citing 26 C.F.R. § 54.9815-2713A; 29 C.F.R. § 2510.3-16; 29 C.F.R. § 2590.715-2713A). A TPA that receives the Form from an obje cting employer is eligible for a government payment to cover the costs of providing contraceptive coverage. See 45 C.F.R. § 156.50(d)(5). As part of this scheme, the regulati ons initially included a non-interference provision, which specified that objecting re ligious non-profit organizations “must not, directly or indirectly, seek to influence th e third party administrator’s decision” whether to provide coverage for contraceptives. 26 C.F.R. § 54.9815-2713 A(b)(iii) (2013). When the Plaintiffs fi led their suits, they sought a preliminary injunction relieving them

9 The notice of regulatory requirements on th e back of the Form is specifically addressed to TPAs. See Form at 2. The legal obligations of health insurance issuers are evident from the text of the ACA itself. See 42 U.S.C. § 300gg-13.- 11 - from complying with this ve rsion of the accommodation sc heme, arguing delivery of the Form to their health insura nce issuer or TPA constituted a substantial burden on their religious exercise in violation of RFRA and the First Amendment. b. Alternative notice In response to litigation by Plaintiffs and others, the Departments have since expanded the accommodation scheme. 10 The Supreme Court gran ted injunctions pending appeal in two suits brought by religious non-profit organi zations, including the Little Sisters, that objected to the accommodation scheme. See Wheaton Coll. v. Burwell , 134 S. Ct. 2806 (2014); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Sebelius , 134 S. Ct. 1022 (2014). In a third suit, the Court declined to recall or stay a circuit court mandate in favor of the Govern ment, but granted an in junction to religious non-profit organizations pend ing final disposition of thei r petition for certiorari. See Zubik v. Burwell , Nos. 14A1065, 14-1418, 2015 WL 3947586, at *1 (U.S. June 29, 2015). The injunctions allowed the organizations to notify HHS directly of their religious objection to the Mandate rather than sending th e Form to their health insurance issuers or TPAs. In response to the injunction in Wheaton College , the Departments issued an interim final rule on Augu st 27, 2014, creating an alternative accommodation for religious non-profit organizations. Coverage of Certain Preventive Services Under the

10 As we explain in this section, the Depa rtments did not expand the pool of actors who could claim an accommodati on and obtain relief from th e Mandate. They expanded the accommodation scheme by offering objecting organizations an alternative method of self-certification.- 12 - Affordable Care Act, 79 Fed. Re g. 51,092, 51,092 (Aug. 27, 2014). 11 These regulations relieve a religious n on-profit organization from complying with the Mandate if it notifies HHS in writing of its religious objection to the provision of some or all contraceptive services. Id. at 51,094. The notice ma y be sent by letter or email, and must contain (1) “the name of th e eligible organization and the basis on which it qualifies for an accommodation,” (2) “its ob jection based on sincer ely held religious beliefs to providing coverage of some or all contraceptive se rvices,” including any particular subset to which it objects; (3) the name and type of the group health plan; and (4) the name and contact information for any of the plan’s TPAs and/ or health insurance issuers. Id. at 51,094-95. According to the Depart ments, these requirements constitute “the minimum information necessary for the Departments to determine which entities are covered by the accommodation, to administer the accommodation, and to implement the

11 We discuss the procedural history of the cases before us below, but note that this alternative accommodation is akin to the acc ommodation granted by the Supreme Court in the cases mentioned above— Little Sisters , 134 S. Ct. 1022; Wheaton College , 134 S. Ct. 2806; and Zubik , 2015 WL 3947586: If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organizati on that holds itself out as religious and has religious objections to pr oviding coverage for contraceptive services, the respondents are enjoined from enforcing agai nst the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final di sposition of appellate review. To meet the condition for inju nction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issu ers or third-party administrators. Wheaton Coll. , 134 S. Ct. at 2807.- 13 - policies in the Ju ly 2013 final regulations.” Id. at 51,095. The revised regulations also repeal th e non-interference provision by deleting language prohibiting or ganizations from interfering with or seeking to influence their TPA’s decision to cover contraception. Id

. 12 We note again that the entirety of this accommodation scheme for religious nonprofit organizations—using either the Form or the alternative notice to HHS—was not available to the for-prof it corporate plaintiff in Hobby Lobby . Here, an accommodation is available to Plaintiffs. In th e cases before us, we consider whether their taking advantage of that accommodation to opt out of the Mandate is itself a substantial burden on their religious exercise.
3. The Mechanics of the Accommo dation for Insured Plans, Self-Insured Plans, and Self-Insured Church Plans The Plaintiffs use different types of em ployer-sponsored group he alth plans, which the Departments treat differen tly within the accommodation scheme. By its own terms,

12 The regulations explain the rationale for this change: The Departments interpre t the July 2013 final re gulations solely as prohibiting the use of bribery, threats, or other forms of economic coercion in an attempt to prevent a third pa rty administrator from fulfilling its independent legal obligati ons to provide or arrange separate payments for contraceptive services. Because such conduct is ge nerally unlawful and is prohibited under other state and fede ral laws, and to reduce unnecessary confusion, these interim final regulati ons delete the language prohibiting an eligible organization from interfering wi th or seeking to influence a third party administrator’s decision or effort s to provide separa te payments for contraceptive services. 79 Fed. Reg. at 51,095.- 14 - the ACA obligates both group health plans and health insurance issuers to provide contraceptive coverage. 42 U.S.C. § 300gg- 13 (“A group health plan and a health insurance issuer offeri ng group or individual health in surance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . with respect to wome n, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.”); 26 C.F.R. § 54.9815- 2713(a)(1); 29 C.F.R. § 2590. 715-2713(a)(1); 45 C.F.R. § 147.130(a)(1). Because the differences among these arrangements are releva nt to our discussion of the merits of Plaintiffs’ claims, we consider it helpful to explain how the Mandate and accommodation scheme affect insured plans, self-insured plans, and self-insured church plans.

a. Insured plans When a religious non-profit organization o ffers its employees an insured plan, the statutory language not only requires the group h ealth plan to cover c ontraception, but also obligates the plan’s health insu rance issuer to ensure plan participants and beneficiaries receive contraceptive coverage. See 42 U.S.C. §§ 300gg-13; 300gg -22. Thus, even if a religious non-profit organization does not self- certify that it has an objection, its health insurance issuer is obligated to provide cont raceptive coverage to plan participants and beneficiaries and charge the organization for the cost. See Priests for Life v. U.S. Dep’t of Health & Hum. Servs. , 7 F. Supp. 3d 88, 95-96 & n.2 (D.D.C. 2013). The organization can free itself from complying wi th the Mandate and paying fo r that coverage, however,- 15 - “if the eligible organization or group health plan provide s either a copy of the selfcertification to each issuer providing coverage in connection with the plan or a notice to the Secretary of Health and Human Services .” 26 C.F.R. § 54.9815-2713AT(c)(1); 29 C.F.R. § 2590.715-2713A(c)(1); 45 C.F.R. § 147.131(c)(1). When an organization submits the Form expressing an objection to providing contraceptive coverage, “the issuer has sole responsibility fo r providing such coverage in accordance with § 147.130.” 45 C.F.R. § 147.131(c)(1)(i); see also 26 C.F.R. § 54.9815-271 3AT(c)(1)(i) (requiring coverage in accordance with § 54.9815-2713); 29 C.F.R. § 2590.7 15-2713A(c)(1)(i) (requiring coverage in accord ance with § 2590 .715-2713). Sim ilarly, when an organization notifies HHS, the De partment of Labor will send a separate notification to the organization’s issuer informing it of that notice and describing its regulatory obligations. 45 C.F.R. § 147.131(c)(1)(ii); see also 26 C.F.R. § 54.9815- 2713AT(c)(1)(ii); 29 C.F.R. § 2590.715-2713A(c)(1)(ii). In the context of insured pl ans, health insura nce issuers are generally responsible for paying for contraceptive co verage when a religious non- profit organization opts out.
See 45 C.F.R. § 156.50. The Departments expect this will be cost -neutral for issuers because of the cost savings that accompany improvements in women’s health and lower pregnancy rates. See 78 Fed. Reg. at 39,877. b. Self-insured plans When a religious non-profit organization o ffers its employees a self-insured plan, the accommodation works in a sli ghtly different fashion. A self-insured group health- 16 - plan complies with the regulatory requi rements and is excused from providing contraceptive coverage if “[t] he eligible organization or its plan contracts with one or more third party administrators” and “[t]he e ligible organization provi des either a copy of the self-certification to each third party admi nistrator or a notice to the Secretary of Health and Human Services th at it is an eligible orga nization and of its religious objection to coverage of all or a subset of contraceptive se rvices.” 26 C.F.R. § 54.9815- 2713AT(b)(1); 29 C.F.R. § 2590.715-2713A(b)(1). Although the text of the ACA does not specify a role for TPAs, it expressly requires group health plans to include cont raceptive coverage, and federal regulations impose obligations on TPAs that administer self-insured group health plans. See 42 U.S.C. § 300gg-13; 26 C.F.R. § 54.9815-2713AT(b); 29 C. F.R. § 2590.715-2713A(b). The regulations require a TPA administering a gr oup health plan to pr ovide or arrange for contraceptive coverage without cost sharing with the organization or its beneficiaries when it: (1) receives a notification that an eligible employer has op ted out of providing coverage and (2) decides to remain in a rela tionship with that employer or its plan to provide administrative services for the pl an. 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The TPA’ s obligations are enforceable under the Employee Retirement Income Security Act (“ERISA”). See 78 Fed. Reg. at 39,879-80. In the context of self-insured plans, a TPA may seek reimbursement if it has received the Form or a notification from th e government and “provides or arranges payments for contraceptive services.” See 26 C.F.R. § 54.9815-2 713AT(b)(3); 29 C.F.R.- 17 - § 2590.715-2713A(b)(3); 45 C. F.R. § 156.50(d)(2)(ii)-(iii). TPAs do so by working through health insurance issu ers, who receive adjustments to fees they pay to the government under the ACA and pass along the reimbursements to TPAs. See 45 C.F.R. § 156.50(d).

c. Self-insured church plans Although federal regulations impose certain requirements on TPAs, the Departments concede they lack authority to enforce those requirements as to self-insured “church plans,” which are group health plans established by a church or association of churches covering the church’s or associa tion’s employees. 29 U.S.C. § 1002(33). Organizations that provide health care cove rage for employees through self-insured church plans are exempt from regulation unde r ERISA. 29 U.S.C. § 1003(b)(2). Unless a church plan has made an election under 26 U.S.C. § 410(d), wh ich opts plans into provisions of ERISA, the Departments concede they lack authority to compel church plan TPAs to provide contraceptive coverage, and may not levy fi nes against those TPAs for failing to provide it. d. Legal obligation to provide co verage after the accommodation Although the accommodation is available fo r both insured and se lf-insured group health plans, the source of the legal obliga tion to provide contraceptive coverage after a religious non-profit organization has opted ou t differs based on the type of insurance arrangement the organization uses. When an organization takes advantage of the accommodation, the ACA requires health insu rance issuers to provide coverage for- 18 - insured group health plans, while federal regulations adopted pursuant to the ACA require TPAs to arrange coverage for self-insur ed group plans that are subject to ERISA. As we discuss below, these distinctions shap e the claims advanced by different Plaintiffs in the cases before us.
B. The Plaintiffs The Plaintiffs 13 in this litigation object to both means to receive an accommodation—sending the Form to their hea lth insurance issuer or TPA or sending a notification to HHS. The Plaintiffs differ from each other in ways that are relevant to the Departments’ authority to require employe rs to provide contr aceptive coverage and relieve objecting religious non- profit organizations from the Mandate when they use the accommodation scheme.
1. Little Sisters of the Poor The Little Sisters of the Poor Home fo r the Aged, Denver, Colorado and Little Sisters of the Poor, Baltimore (“Little Sisters”) belong to an order of Catholic nuns who devote their lives to care fo r the elderly. The Little Sist ers provide health insurance coverage to their employees through the Ch ristian Brothers Employee Benefit Trust (“Trust”), a self-insured church plan that is not subject to ERISA. The Trust uses Christian Brothers Services (“Christian Brothe rs”), another Catholic organization, as its
TPA.

13 When we refer to the plaintiffs in all three cases collectively, we use “Plaintiffs.” When we refer to a subset of the plaintiffs, we use “plaintiffs.”- 19 - The Little Sisters have always excluded c overage of sterilization, contraception, and abortifacients from their health care plan in accordance with their religious belief that deliberately avoiding reproduc tion through medical means is immoral. The Little Sisters “believe that it is wrong for them to intentio nally facilitate the provision of these medical procedures, drugs, devices, and related counseling and services.” LS Br. at 10. They cite “well-established Catholic teach ing that prohibits encouraging, supporting, or partnering with others in the provi sion of sterilization, contraception, and abortion.” LS Br. at 9-10. The Little Sisters contend they “cannot provide these things, take actions that directly cause others to provide them, or otherwise appear to participate in the government’s delivery scheme,” as the mere appearance of condoning these services “would violate their public witness to the sanctity of hu man life and human dignity and could mislead other Catholics and the public.” LS Br. at 10. The Little Sisters are subject to the Mand ate unless they take advantage of the accommodation scheme by delivering the Form to the Christian Brothers, their TPA, or notifying HHS of their religious objection. If they do not take one of these steps and do not provide contraceptive covera ge, they estimate a single L ittle Sisters home could incur penalties of up to $2.5 million per year, and allege the Trus t could lose up to $130 million in plan contributions. The Little Sisters plaintiffs object that the accommodation scheme violates their sincerely held religious belie fs because they cannot take actions that directly cause others to provide contraception or appear to participate in the Departments’ delivery scheme.- 20 - 2. Southern Nazarene Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and Mid-America Ch ristian University are “Christ-centered institutions of higher learning.” SN Br. at 1-2. Southern Nazarene is partially self-insured; it generally assumes the risks of providing coverage but contracts with a health insurance issuer to pay all claims over $100,000. For its insure d employee coverage, it uses Blue Cross Blue Shield of Oklahoma. It offers separate cove rage to students through an insured plan. Oklahoma Baptist is an insured university. It uses Blue Cr oss Blue Shield of Oklahoma, and offers separate coverage to students thro ugh an insured plan. Oklahoma Wesleyan is an insured university. It uses Community Care of Oklahoma. Mid-America Christian is a self-insured university on a church plan that is not subjec t to ERISA. It uses plans provided by GuideStone Financial Resources. 14

14 The descriptions of Mid-America Chri stian’s insurance arrangements in the record before us are inconsistent. Before the district court, counsel described MidAmerica Christian’s plan as “insured by Guid eStone,” App. in SN at A32, and suggested it would be obligated, like Oklahoma Baptist and Oklahoma Wesleyan, to deliver the Form to its health insurance issuer to opt out of the Mand ate. In its opening brief on appeal, counsel described Mid-America Christia n’s plan as “self-insured,” and suggested it would be obligated, like Southern Nazarene, to deliver the Form to its TPA. SN Br. at 2, 18. In a supplemental brief and at oral argument, counsel now indicates Mid-America Christian has a self-insured church plan and is more akin to the Reaching Souls plaintiffs. SN Supp. Br. II at 9 n.2; Oral Arg. in SN at 20:24-20:32. We treat Mid-America Christian’s plan as a self-insured church plan. The parties in Southern Nazarene stipulated as fact that Mid-Ameri ca Christian’s group health plan is provided by GuideStone Financial Resources. Southern Nazarene , 2013 WL 6804265, at *2. Because we understand GuideStone Fina ncial Resources to be a sponsor of selfinsured church plans and not an insurer, we assume the late st characterization on appeal Continued . . .- 21 - The universities have brought su it collectively, but they are in slightly different positions insofar as Mid-America Christian Univ ersity uses a church plan and contracts with a TPA, Oklahoma Baptist University an d Oklahoma Wesleyan use health insurance issuers, and Southern Nazarene contracts with a TPA but uses a health insurance issuer for student coverage and employe e claims above $100,000.
The universities believe “it woul d be sinful and immoral fo r them to participate in, pay for, facilitate, enable, or otherwise sup port access to abortion, abortion-inducing drugs and devices, and related counseling.” SN Br. at 1-2. They object to the provision of contraceptives they consider abortifacient s. The universities cu rrently offer health plans to students and employees that do not cover the contraceptives the universities find objectionable. The universities are subject to the Mandate, but they may take advantage of the accommodation scheme by deliver ing the Form or notifying HHS of their religious objections to relieve themselves of the oblig ation to provide contraceptive coverage. They object to the accommoda tion, however, because they believe it requires them to expressly or functionally offer contraceptive coverage through their group health plan, interferes with the sp iritual development of their co mmunities, and requires them to facilitate behavior they consider sinful. If they do not take advantage of the

______________________________________ Cont. is correct and treat Mid-America Christian’s gr oup health plan as a self-insured church plan that is not subject to ERISA.- 22 - accommodation, each university mu st either provide coverage or incur penalties of $100 per employee per day.
3. Reaching Souls Reaching Souls is a non-prof it corporation founded by a Southern Baptist minister and based in Oklahoma. The organization tr ains pastors and evangelists and provides care to orphans in Africa, Indi a, and Cuba. Truett-McConnell College is a private liberal arts college based in Georgia. Both Reaching Souls and Truett-McConnell use the GuideStone Plan, a self-insured church plan that is not subject to ERISA. GuideStone Financial Resources, a Texas non-profit corpora tion, established the GuideStone Plan and holds the assets funding it in trust. Guid eStone Financial Resources has entered into agreements with other entities to provide claims administration as TPAs under the GuideStone Plan, including Connecticut General Life In surance Company, Highmark Health Services, and Express Scripts, Inc. Reaching Souls believes life begins at concep tion and objects to four of the twenty FDA-approved methods of contraception that Reaching Souls characterizes as abortifacients. Truett-McConnell has adop ted the Southern Baptist Convention’s statement of faith and objects to the same f our methods of contrace ption. GuideStone Financial Resources, as an arm of the So uthern Baptist Convention, also opposes coverage of contraception meth ods it believes to be abortifac ients. The organizations ground their beliefs in the sanctity of human life and opposition to elective abortion in the religious teachings of the Sout hern Baptist Convention.- 23 - Both Reaching Souls and Truett-McConnell College are subject to the Mandate, but they may take advantage of the acco mmodation scheme by delivering the Form or notifying HHS of their religious objections. If they do, GuideStone Financial Resources would have to pass the informa tion to the TPAs of the GuideS tone Plan to effectuate the coverage. The plaintiffs belie ve this would violate their religious beliefs “by making them complicit in the go vernment’s scheme to provide abor tifacients.” RS Br. at 4. If the organizations do not take advantage of the accommodation scheme or provide coverage, they contend they w ill incur millions of dollars in fines, which “would crush the ministries and force a mass exodus from GuideStone.” RS Br. at 3.
C. Procedural History The district courts reached different results in the three cases before us, denying a preliminary injunction to the plaintiffs in Little Sisters but granting a preliminary injunction to the plaintiffs in Southern Nazarene and Reaching Souls . Reviewing the reasoning behind their determinations clar ifies the claims befo re us on appeal.
1. Little Sisters of the Poor
In Little Sisters , the district court determin ed that complying with the accommodation scheme would not impose a substantial burden on the Little Sisters’ or Christian Brothers’ religious exercise. 6 F. Supp. 3d at 1239-45. Th e court’s analysis of the preliminary injunction factors began and ended by examining whether the plaintiffs would suffer irreparable injury if the requested relief were denied. Id. at 1236. After determining it was the court’s duty to determin e how the regulations operate as a matter- 24 - of law, id. at 1239, the court concluded the acco mmodation scheme does not require the Little Sisters to provide cont raceptive coverage or to par ticipate in the provision of contraceptive coverage, id. at 1239-42. The court noted that the Little Si sters—unlike the plaintiffs in Hobby Lobby

— could be relieved of the obligation to provi de coverage by signi ng and delivering the Form to their TPA, the Christian Brothers. Id. at 1237. 15 The court underscored that, while the Departments could require the Little Sisters to sign and deliver the Form to their TPA to avoid the Mandate, the Depart ments lacked enforcement authority under ERISA to levy fines or otherwise force the Ch ristian Brothers to provide contraceptive coverage as the TPA for a self-ins ured, ERISA-exempt church plan. Id. at 1243-44. The court concluded that requiring the Little Sisters to sign and deliver the Form to opt out did not constitute a substantial burden on their religious exerci se and declined to issue a preliminary injunction. Id. at 1242-45. The Little Sisters next aske d the Tenth Circuit for an injunction pending appeal, which this court denied. The Supreme Court subsequently granted their request for an injunction pending appeal, allowing the Little Sisters to notify HHS of their religious objection instead of sending the Form to their TP A as the regulations at the time required.

15 At the time the district courts decided all three of the cases before us, the interim final rules allowing Plaintiffs to opt out by notifying HHS of their religious objection had not yet been issued. The dist rict court decisions therefore focus on the Form and do not consider the expanded accommodation scheme in August 2014’s interim final rules. In supplemental briefing to this court, the Pl aintiffs argue the expanded scheme does not adequately address the religious liberty concer ns they have raised in this litigation.- 25 - See Little Sisters , 134 S. Ct. 1022. The Little Sisters now appeal the district court’s denial of a preliminary injunction.
2. Southern Nazarene
In Southern Nazarene , the district court granted a preliminary injunction to the plaintiffs. 2013 WL 6804265, at *11. The court’s an alysis focused mainly on the plaintiffs’ likelihood of success on the merits. 16 Id. at *7-10. The court characterized the Form as “in effect, a permission slip which mu st be signed by the institution to enable the plan beneficiary to get access, free of charge , from the institution’s insurer or third party administrator, to the products to which the institution objects.” Id. at *8. It determined the Form imposed a substantial burden on the plaintiffs’ sin cere religious exercise and the Government had not articulated a compelling st ate interest or argued its approach was the least restrictive means of advancing that interest. Id. at *7-10.

16 The district court noted that, unlike in the recently decided Priests for Life , 7 F. Supp. 3d 88, the parties in Southern Nazarene “stipulated that the act of signing the certification is contrary to the religious beliefs to which these institutions subscribe.” Southern Nazarene , 2013 WL 6804265, at *8. The court’s characterization paraphrases the stipulation, which addresses only the litigation position taken by the Southern Nazarene plaintiffs. The parties specifically sti pulated: “The Univer sities believe that, within the operation of the regulations, comple ting and delivering the self-certification to their issuers or third party administrators w ould violate the Universities’ sincere religious beliefs.” Id. at *5. The Government accepts that the Southern Nazarene plaintiffs take the position that completing the self-certificat ion would violate thei r religious beliefs—a fairly straightforward characterization of their litigation position—but has never conceded that completing the self-certification actually wo uld violate their religious beliefs.- 26 - The court concluded the plaintiffs had s hown they were likely to succeed on the merits. Id. After reaching this conclusion, it br iefly reviewed the other preliminary injunction factors and entered a preliminary injunction that prevented the Departments from enforcing the Mandate, requiring self-certif ication to opt out, or levying penalties. Id. at *10-11. The Government now a ppeals the district court’s ruling.
3. Reaching Souls
Like the district court in Southern Nazarene , the district court in Reaching Souls granted a preliminary injunction to the plaint iffs. 2013 WL 6804259, at *8. The court primarily analyzed the lik elihood of plaintiffs’ success on the merits. Id. at *6-8. It characterized the Government’s substantial burden argument as “simply another variation of a proposition rejected by the court of appeals in Hobby Lobby ,” likening it to the argument that the Mandate was not a substa ntial burden on for-profit employers because it required intervening acts by third parties— employees deciding whether to acquire contraception. Id. at *7. It emphasized that regard less of whether the Form actually triggers the provision of contraceptive services , the plaintiffs believe that signing it would signal their tacit support or cooperation. Id. The court thus determined “the acco mmodation scheme applies substantial pressure on Plaintiffs to violate their be lief that participating in or facilitating the accommodation is the moral equivalent of di rectly complying with the contraceptive mandate.” Id. at *8. It briefly reviewed the ot her preliminary injunction factors and enjoined the Government from requiring the plaintiffs to comply with the Mandate and- 27 - accommodation scheme or penalizing the plaintiffs for no ncompliance. Id . The Government now appeals the district court’s ruling.
IV. UNUSUAL NATURE OF PLAINTIFFS’ CLAIM Before we present our analysis of the i ssues, we wish to highlight the unusual nature of Plaintiffs’ central claim, wh ich attacks the Government’s attempt to accommodate religious exercise by providing a means to opt out of compliance with a generally applicable law. Most religious liberty claima nts allege that a generally applicable law or policy without a religious exception bur dens religious exercise, and they ask courts to strike down the law or policy or excuse them from co mpliance. Our circuit’s three most recent RFRA cases fall into this category. In Hobby Lobby Stores, Inc. v. Sebelius , 723 F.3d 1114 (10th Cir. 2013) (en banc), aff’d sub nom. Hobby Lobby , 134 S. Ct. 2751, the ACA required the plaintiffs to provide their empl oyees with health insurance coverage of contraceptives against thei r religious beliefs. In Yellowbear v. Lampert , 741 F.3d 48 (10th Cir. 2014), a prison policy denied the pl aintiff access to a sweat lodge, where he wished to exercise his Nativ e American religion. In Abdulhaseeb v. Calbone , 600 F.3d 1301 (10th Cir. 2010), a prison policy denied th e plaintiff a halal diet, which is necessary to his Muslim religious exercise . In each instance, the law or policy failed to provide an exemption or accommodation to the plaintiff(s). The Supreme Court’s recent ruling in Holt v. Hobbs , 135 S. Ct. 853 (2015), which concerned a prison ban on inma tes’ growing beards, is anot her recent example of the- 28 - more common RFRA claim. The plaintiff in Holt sought to grow a be ard in accordance with his Muslim faith. In Holt , like in Hobby Lobby , the government defendants insisted on a complete restriction and did not attempt to accommodate the plaintiff’s religious exercise. The plaintiff in Holt proposed a compromise—he would be allowed to grow only a half-inch beard—which the prison refu sed. 135 S. Ct. at 861. The Court ultimately approved this comp romise in its ruling. Id. at 867. In the cases before us, by contrast, the Departments have developed a religious accommodation rather than leaving it for the cour ts to fashion judicial relief. Plaintiffs not only challenge a law that requires them to provide contraceptive coverage against their religious beliefs, they challenge the ex ception that the law a ffords to them. The precedents Plaintiffs cite are instructive in some respects , but none of them involve a situation where the government offers religious objectors an accommodation. 17 The Supreme Court and this circuit have su ggested such accommodations might have eliminated or lessened burdens we otherwise deemed substantial. See, e.g. , Hobby Lobby , 134 S. Ct. at 2759 (observing the accommodation scheme “constitutes an

17 The accommodation adds an additional consideration th at makes this unlike the typical RFRA case. In Hobby Lobby , Yellowbear , Abdulhaseeb , and Holt , the government either required or pr ohibited acts of religious signifi cance to the plaintiffs. In the cases before us, the government has freed Plaintiffs from the re sponsibility to perform the act they consider religiously objec tionable—namely, providing contraceptive coverage. Nonetheless, the Plaintiffs argue an act they do not cons ider objectionable in itself—completing a form or writing to HH S—becomes objectionable because it either causes the provision of contraceptive coverage or renders them comp licit in the provision of contraceptive coverage. Therefore, unlik e the aforementioned cases, we are in the slightly different position of considering whether an ot herwise unobjectionable act, understood in context, constitu tes a substantial burden on Pl aintiffs’ religious exercise.- 29 - alternative that achieves all of the Government ’s aims while providi ng greater respect for religious liberty”); Yellowbear , 741 F.3d at 56 (underscoring that the case “isn’t a situation where the claimant is left with some degree of choice in the matter and we have to inquire into the degree of the government’s coercive infl uence on that choice”). Until now, however, we have not squarely cons idered a RFRA challe nge to a religious accommodation. The closest Tenth Circuit case we have found is United States v. Friday , 525 F.3d 938 (10th Cir. 2008), in which defendant Winslow Friday argued his conviction for shooting a bald eagle w ithout a permit violated RFRA beca use he shot the eagle for use in a tribal religious ceremony. The Bald a nd Golden Eagle Protec tion Act forbids killing a bald eagle, but an applicant can obtain a pe rmit to “take” a live eagle for a religious
ceremony. See 16 U.S.C. §§ 668, 668a. We re cognized the potential question of “whether it substantially burd ens Mr. Friday’s religion to require him to obtain a permit in advance of taking an eagle.” Friday , 525 F.3d at 947. We said we were “skeptical that the bare requirement of obtaining a permit can be regarded as a ‘substantial burden’ under RFRA,” id. , but Mr. Friday did not make that specific argument, and we decided the permit accommodation otherwise met RFRA’s strict scrutiny element, id. at 948. We spoke favorably of the govern ment’s accommodation scheme in Friday , even though “[t]hat accommodation may be more burdensome than the [religious objectors] would prefer, and may sometimes subordinate th eir interests to other policies not of their choosing.” Id. at 960. As we noted in conclusi on: “Law accommodates religion; it- 30 - cannot wholly exempt religion from the reach of the law.” Id. We therefore turn to uncharted Tenth Circuit terrain.
* * * * The Plaintiffs in the three cases before us assert clai ms against the Mandate and accommodation scheme under RFRA and the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses. 18 Because we determine the accommodation scheme relieves Plaintiffs from complying wi th the Mandate and does not substantially burden their religious exercise under RFRA or infringe upon th eir First Amendment rights, we affirm the district court’s denial of a preliminary injunction to the plaintiffs in Little Sisters and reverse the district courts’ gran ts of a preliminary injunction to the plaintiffs in Southern Nazarene and Reaching Souls

. V. RFRA Under RFRA, the government “shall not s ubstantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless “it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest ; and (2) is the least restric tive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. Plaintiffs argue the ACA an d its implementing regulati ons violate RFRA because

18 We refer to “Plaintiffs” throughout the discussion, bu t in the First Amendment context, “Plaintiffs” refers only to the plaintiffs in Little Sisters and Reaching Souls

. See infra note 51.- 31 - they substantially burden th eir religious exercise by forc ing them to do one of three things: (a) comply with the Mandate and provide co ntraceptive coverage, (b) take advantage of the accommodation scheme, or (c) pay steep fines for non-compliance. 19
We conclude that the accommodation scheme re lieves Plaintiffs of complying with the Mandate or paying fines and does not impose a substantial burden on Plaintiffs’ religious exercise for the purposes of RFRA. To explain why the accommodation is pe rmissible under RFRA, we first review the RFRA framework and consider how re ligious accommodations may lessen or eliminate the substantiality of a burden on religious exerci se. We then apply this framework to the accommodation scheme before us, which exempts re ligious non-profits

19 The Government identifies a fourth op tion: by declining to sponsor a group health plan, Plaintiffs could avoid complying with the Mandate, using the accommodation, or paying the fines. The Gove rnment frames the Plaintiffs’ provision of health insurance as an economic expenditure, and notes that regulations may make a business activity more expensive or onerous w ithout violating the freedom of religion. See Tony & Susan Alamo Fou nd. v. Sec. of Labor , 471 U.S. 290, 303-05 (1985); Braunfeld v. Brown , 366 U.S. 599, 605-06 (1961); but see Hobby Lobby , 134 S. Ct. at 2777. Plaintiffs respond that they consider the provision of health insurance a religious obligation, not merely an econom ic expenditure. Plaintiffs “b elieve they have a religious obligation to care for the employees who join in their ministry, and they cannot throw those people off their insurance policies wit hout violating that ob ligation and harming their ministry.” LS Reply Br. at 8. Because we determine the accommodation sc heme is not a substantial burden, we need not decide whethe r this fourth option constitutes a substantial burden on religious exercise—or, if it does, whether it survives strict scrutiny. For similar reasons, we need not address th e safe harbor provision detailed in the June 2013 regulations, which indi cates organizations with sel f-insured group health plans that bring administration of their plans in -house and thereby do not use third-party administrators currently are not subject to enforcement of the contraceptive coverage requirement. 78 Fed. Re g. at 39,880-81.- 32 - from providing contraceptive coverage and instead assigns that task to health insurance issuers and TPAs. We conclude the accommodation does no t substantially bur den Plaintiffs’ religious exercise. The accommodation relie ves Plaintiffs from complying with the Mandate and guarantees they w ill not have to provide, pay fo r, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or ot herwise cause contraceptive coverage because federal law, not the act of opting out, entitle s plan participants and beneficiaries to coverage. Although Plaintiffs allege the ad ministrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity. Furthermore, these de minimis administrative tasks do not substantially burden religious ex ercise for the purposes of RFRA. The dissent parts ways with our majority opinion on the self-insured plaintiffs’ RFRA claims. It stresses that, by opting out, the self-insured plaintiffs would cause the legal responsibility to prov ide contraceptive coverage to shift to their TPAs. 20 We agree. As we observe below, the regulations are clear on that point. 21 But shifting legal

20 Plaintiffs make causation the centerpiece of their RFRA claim. They allege that opting out of the Mandate would cause or make them complicit in providing contraceptive coverage, and thus substantially burdens their re ligious exercise. Much of our opinion assesses and u ltimately rejects the merits of this claim.

21 Indeed, this is an unremarkable feature of the accommodation scheme. An opt out religious accommodation typically contempl ates that a non-objector will replace the religious objector and take over any legal responsibilities.- 33 - responsibility to provide coverage away from th e plaintiffs relieves rather than burdens their religious exercise. The ACA and its implementing regulations entitle plan participants and beneficiaries to coverage whether or not the plaintiffs opt out. And the government has established a scheme where, if the law is followed, se lf-insured plaintiffs that opt out are relieved of providing, paying for, a nd facilitating coverage; the government assigns that responsibility to their TPAs; and plan participants and beneficiaries receive the coverage to which th ey are entitled by fede ral law. Such an arrangement is among the common and permis sible methods of religious accommodation in a pluralist society, and does not constitute a substa ntial burden un der RFRA.
A. Legal Background
1. Standard of Review Each appeal before us seeks review of a district court order granting or denying a preliminary injunction. We review orders granting or denying a preliminary injunction for abuse of discretion. See Hobby Lobby , 723 F.3d at 1128; Aid for Women v. Foulston , 441 F.3d 1101, 1115 (10th Cir. 2006). A preliminary injunction may be granted if the party seeking it shows: “(1) a likelihood of success on the merits ; (2) a likely threat of irreparable harm to the movant; (3) the harm alleged by the movant outweighs any harm to the non- moving party; and (4) an injunction is in th e public interest.” Hobby Lobby , 723 F.3d at 1128. A district court abuses its discretion by grantin g or denying a preliminary inj unction based on an error of law. See id. ; Aid for Women , 441 F.3d at 1115.- 34 - 2. RFRA and Free Exercise RFRA was enacted in 1 993 in response to Employment Division, Department of Human Resources of Oregon v. Smith , 494 U.S. 872 (1990), in which the Supreme Court held that burdens on religious exercise are constitutional under the Free Exercise Clause if they result from a neutral law of genera l application and have a rational basis. Id. at 878-80; United States v. Hardman , 297 F.3d 1116, 1126 (1 0th Cir. 2002). Congress enacted RFRA to restore the pre- Smith standard, which permitted legal burdens on an individual’s religious exercise only if the government could show a compelling need to apply the law to that person and that the law did so in the least restrictive way. Smith , 494 U.S. at 882-84; see also Hobby Lobby , 134 S. Ct. at 2792-93 (Ginsburg, J., dissenting). Congress specified the purpose of RFRA was to restore this compelling interest test as it ha d been recognized in Sherbert v. Verner , 374 U.S. 398 (1963), and Wisconsin v. Yoder , 406 U.S. 205 (1972). See 42 U.S.C. § 2000bb(b)(1). By restoring the pre- Smith compelling interest standard, Congress did not express any intent to alter other aspects of Free Exercise jurisprudence. See id. ; Hobby Lobby , 723 F.3d at 1133 (“Congress, through RFRA, intended to bring Free Exercise jurisprudence back to the test established before Smith . There is no indication Congress meant to alter any other aspect of pre- Smith jurisprudence . . . .”). Notably, pre- Smith jurisprudence allowed the government “wide latitude” to administer large administrative programs, and rejected the imposition of strict scrutiny in that context. As the Supreme Court indicated in Bowen v. Roy ,- 35 - In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude. The Government should not be put to the strict test applied by the District Court; that standard required the Govern ment to justify enforcement of the use of Social Security number requirem ent as the least restrictive means of accomplishing a compelling state interest. 476 U.S. 693, 707 (1986). As we discuss at greater length below, the pre- Smith standards restored by RFRA permitted the Government to impose de minimis administrative burdens on religious actors without runnin g afoul of religious liberty guarantees.
3. Elements of RFRA Analysis RFRA analysis follows a burden-shifting fra mework. “[A] plaintiff establishes a prima facie claim under RFRA by proving the following three elements: (1) a substantial burden imposed by the federal government on a (2) sincere (3) exercise of religion.” Kikumura v. Hurley , 242 F.3d 950, 960 (10th Cir. 2001); see 42 U.S.C. § 2000bb-1(a). 22
The burden then shifts to th e government to demonstrate its law or policy advances “a compelling interest implemented through th e least restrictive means available.” Hobby Lobby , 723 F.3d at 1142-43. The government must show that the “compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular

22 RFRA originally defined “exercise of religion” as “the exercise of religion under the First Amendment to the Constitution. ” In 1999, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) am ended RFRA, and redefined “exercise of religion” by reference to 42 U.S.C. § 2000cc -5(7)(A). 42 U.S.C. § 2000bb-2(4). Section 2000cc-5(7)(A) expanded the phrase to include “any exerci se of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); see Kikumura , 242 F.3d at 960.- 36 - claimant whose sincere exercise of relig ion is being substantially burdened.” Id. at 1126 (quotations and citation omitted). “This burd en-shifting approach applies even at the preliminary injunction stage.” Id. We have previously stated “a government act imposes a ‘subs tantial burden’ on religious exercise if it: (1 ) requires participation in an activity prohibited by a sincerely held religious belief, (2) prevents participa tion in conduct motivated by a sincerely held religious belief, or (3) places substantial pres sure on an adherent to engage in conduct contrary to a sincerely held religious belief.” Hobby Lobby , 723 F.3d at 1125-26 (quotations and alterations omitted); see also Yellowbear , 741 F.3d at 55 (applying this framework to RLUIPA); Abdulhaseeb , 600 F.3d at 1315 (same). As we discuss in the next section, whether a law substantially burde ns religious exercise in one or more of these ways is a matter for cour ts—not plaintiffs—to decide.
4. Courts Determine Substantial Burden To determine whether plaintiffs have ma de a prima facie RFRA claim, courts do not question “whether the petitioner . . . correc tly perceived the commands of [his or her] faith.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div. , 450 U.S. 707, 716 (1981); see Hobby Lobby , 723 F.3d at 1138-40. But courts do determine whether a challenged law or policy substantially burdens plaintiffs’ religi ous exercise. RFRA’s statutory text and religious liberty case law demonstrate that courts—not plaintiffs—must determine if a law or policy substantially bur dens religious exercise. RFRA states the federal government “s hall not substantially burden a person’s- 37 - exercise of religion.” 42 U.S.C. § 2000bb-1(a). We must “give effect . . . to every clause and word” of a statute when possible. United States v. Menasche , 348 U.S. 528, 538-39 (1955). Drafts of RFRA prohibited the gov ernment from placing a “ burden” on religious exercise. Congress added the word “substant ially” before passage to clarify that only some burdens would violate the act. 139 Cong . Rec. S14352 (daily ed. Oct. 26, 1993) (statements of Sen. Kennedy and Sen. Hatch). We therefore consider not only whether a law or policy burdens religious exercise, but whether that burden is subs tantial. If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning. See Menasche , 348 U.S. at 538- 39. Furthermore, accepting any burden alle ged by Plaintiffs as “substantial” would improperly conflate the determination that a re ligious belief is sin cerely held with the determination that a law or policy subs tantially burdens religious exercise. Every circuit that has addressed a RFRA challenge to the accommodation scheme at issue here has concluded that whether the government has imposed a “substantial burden” is a legal determination. See E. Tex. Baptist Univ. v. Burwell , Nos. 14-20112, 14-10241, 14-40212, 14-10661, 2 015 WL 3852811, at *3-5 & n.33 (5th Cir. June 22, 2015); Univ. of Notre Dame v. Burwell , 786 F.3d 606, 612 (7th Cir. 2015); Geneva Coll. v. Sec’y of U.S. Dep’t of Health & Human Servs. , 778 F.3d 422, 436 (3d Cir. 2015); Priests for Life v. U.S. De p’t of Health & Human Servs. , 772 F.3d 229, 247-49 (D.C. Cir. 2014); Mich. Catholic Conf. & Catholic Family Servs. v. Burwell , 755 F.3d 372, 385 (6th- 38 - Cir. 2014), vacated and remanded , 135 S. Ct. 1914 (2015). Th is is consistent with our determination that we review de novo “what constitutes [a] substa ntial burden . . . and the ultimate determination as to whethe r the RFRA has been violated.” United States v. Meyers , 95 F.3d 1475, 1482 (10th Cir. 1996); see also Yellowbear , 741 F.3d at 56 (determining “a reasonable finder of fact c ould conclude the prison has substantially burdened Mr. Yellowbear’s religi ous exercise”). Thus, we “acce pt[] as true the factual allegations that [Plaintiffs’] beliefs are sincer e and of a religious na ture—but not the legal conclusion, cast as a factual allegation, that [their] religious exercise is substantially burdened.” Kaemmerling v. Lappin , 553 F.3d 669, 679 (D.C. Cir. 2008); see Mahoney v.
Doe , 642 F.3d at 1112, 1 121 (D.C. Cir. 2011); Henderson v. Kennedy , 253 F.3d 12, 17 (D.C. Cir. 2001). 23 We have cautioned that substantiality does not permit us to scrutinize the “theological merit” of a plaintiff’s religious beliefs—instead, we analyze “the intensity of

23 Plaintiffs cite Thomas to argue we must accept th eir belief that they cannot participate in the accommodation whether or not that belief is “acceptable, logical, consistent, or comprehensible.” LS Br. at 47; RS Br. at 39 (quoting Thomas , 450 U.S. at 714). Thomas concerned the denial of unemployment benefits to a claimant who quit his job because his religious belie fs prohibited him from producing armaments to be used for war. Thomas prevents courts from scrutinizing th e theological merit of a plaintiff’s sincere religious belief, but not from asse ssing whether a challenged law or policy amounts to a substantial burde n on religious exercise. See Hernandez v. Comm’r , 490 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith , or the validity of particular litigants’ interpretations of those creeds. We do, how ever, have doubts whether the alleged burden imposed by the deduction disallowance on the Sc ientologists’ practices is a substantial one.” (citing Thomas , 450 U.S. at 716)).- 39 - the coercion applied by th e government to act contrary to those beliefs.” Hobby Lobby , 723 F.3d at 1137 (emphasis omitted). “Our only task is to determine whether the claimant’s belief is sincere, and if so, wh ether the government has applied substantial pressure on the claimant to violate that belief.” Id. 24 In determining whether a law or policy applies substantial pressure on a claimant to violate his or her beliefs, we consider how the law or policy being ch allenged actually operates and affects religious exercise.
See Geneva Coll. , 778 F.3d at 436 (“We may consider the nature of the action required of the appellees, the connection between that action and the appellees’ beliefs, and the extent to which that action interferes with or otherwise affects the appellees’ exercise of religion—all without delving in to the appellees’ beliefs.”); see also 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1 993) (statement of Sen. Kennedy) (observing that RFRA would not impose strict scrutiny for “governmental actions that have an incidental effect on religious institutions”). When evaluating RFRA claims, we have th erefore recognized that not all burdens alleged by plaintiffs amount to substantial burdens. See Abdulhaseeb , 600 F.3d at 1321 (“We are not willing to conclude, however, th at every single presentation of a meal an inmate considers impermissible constitutes a substantial burden on an inmate’s religious exercise.”); Grace United Methodist Chur ch v. City of Cheyenne , 451 F.3d 643, 654 (10th Cir. 2006) (“[W]e are not persuaded by Grace United’s assertion that the Board’s

24 The Government does not dispute the sinc erity of Plaintiffs’ religious beliefs. See Little Sisters , 6 F. Supp. 3d at 1237; Southern Nazarene , 2013 WL 6804 265, at *5; Reaching Souls , 2013 WL 6804259, at *4.- 40 - denial of a zoning variance for its proposed daycare operati on constitutes more than an incidental burden on religious conduct.”); Kikumura , 242 F.3d at 961 (requiring evidentiary proof from the pl aintiff that an alleged bur den was “substantial” and remanding to the district court). Furthermore, as we discuss in the following section, the existence of an accommodation may affect wh ether a law or policy burdens religious exercise and whether that burden is substantial.
5. Accommodations Can Lessen or Eliminate Burden We finally note that accommodations functio n to lessen or eliminate the burden of a generally applicable law. In Hobby Lobby , this court said the stark choice between providing contraceptive cove rage and paying steep fine s constitutes a sufficiently substantial burden to warra nt relief under RFRA. Hobby Lobby , 723 F.3d 1114. Religious objectors are not always put to such a stark choice. When, as here, plaintiffs are offered an accommodation to a law or policy that would otherwise constitute a substantial burden, we must analyze whet her the accommodation renders the potential burden on religious exercise in substantial or nonexistent such that the law or policy that includes the accommodation satisfies RFRA. Accommodations may eliminate burdens on religious exercise or reduce those burdens to de minimis acts of administrative complian ce that are not substantial for RFRA purposes. The Supreme C ourt recognized this point in Hobby Lobby when it suggested an accommodation to exempt the pl aintiff corporations from complying with the Mandate could satisfy RFRA concerns. Hobby Lobby , 134 S. Ct. at 2782 (“At a- 41 - minimum, [the accommodation] doe s not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptiv es at issue here violates their religion, and it serves HHS’s stated interests equally well.”); see also id. at 2786-87 (Kennedy, J., concurring). The D.C. Circuit observed that “[a] burden does not rise to the level of being substantial when it pl aces an inconsequential or de minimis burden on an adherent’s religious exercise.” Priests for Life , 772 F.3d at 246 (quotations, citations, and alterations omitted). Were it otherwise, our substantial bur den inquiry would become a blunt tool incapable of recognizing th e meaningful difference between forcing organizations to provide or pay for contraceptiv es and allowing them to opt out of that requirement. To determine whether the ac commodation scheme in these cases renders the alleged burden on Plaintiffs’ religious exercise nonexistent or insubstantial, we turn to the merits of Plaintiffs’ RFRA arguments.
B. Substantial Burden Analysis
1. Plaintiffs’ RFRA Arguments The cases before us turn on whet her complying with the accommodation constitutes a substantial burden. The Gove rnment does not dispute the sincerity of Plaintiffs’ religious belief that they may no t provide, pay for, or facilitate contraceptive coverage. The parties disput e whether the accommodation scheme substantially burdens the Plaintiffs’ exercise of religion. Plaintiffs oppose completing the Form or notifying HHS b ecause they believe they are being asked to play a causal role in th e delivery of contracep tive coverage and would- 42 - be complicit or perceived to be complicit in the overall contraceptive delivery scheme by virtue of their opting out. They also allege their continuing involvement in the regulatory scheme is a substantial burden. 25 The Government responds that comple ting the Form or notification does not involve Plaintiffs in the delivery of cont raceptive coverage. Th e accommodation relieves Plaintiffs of their obligations under the Ma ndate, and when that occurs, federal law authorizes and obligates a hea lth insurance issuer or TPA to provide or arrange for the delivery of contraceptive covera ge to plan participants a nd beneficiaries who are entitled to that coverage under th e ACA. The Government th erefore argues the accommodation

25 The Little Sisters and Reaching Souls plaintiffs clarify that they “have never objected to merely identifying themselves so that the government can leave them alone.” LS Supp. Br. II at 2 n.2; RS Su pp. Br. II at 2 n.2. They ha ve expressed satisfaction with the Supreme Court’s injunctions pending appeal in Little Sisters and Wheaton College

. LS Supp. Br. II at 1-2; RS Supp. Br. II at 2, 12; Oral Arg. in LS at 12:10-12:40. They nevertheless object to the recent m odified accommodation promulgated by the Departments—the opt out letter to HHS—bot h because the self-certification requires more information about their group health plan than the afor ementioned notice the Supreme Court proposed, and be cause of the “collateral conseq uences” that follow after they opt out. Oral Arg. in LS at 12:10-13:53. The Little Sisters and Reaching Souls plaintiffs have not convincingly explained how the notice to HHS promulgated by the De partments would substantially burden their religious exercise but the notice crafte d by the Supreme Court does not. In Wheaton College , the Supreme Court emphasized the plai ntiffs had functionally notified the Departments they met the necessary requirem ents to obtain an accommodation, and said “[n]othing in this order precludes the Gove rnment from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” 134 S. Ct. at 2807; see also Zubik , 2015 WL 3947586. The Southern Nazarene plaintiffs object to affirm atively voicing a religious objection, including the type of notice described in Wheaton College

. See Oral Arg. in SN at 24:30-25:20. They appear to belie ve that exemption from the Mandate—like the exemption for religious employers—is the only proper result under RFRA.- 43 - does not substantially burden Plaintiffs’ re ligious exercise as a matter of law.
2. The Accommodation Scheme Eliminates Burdens on Religious Exercise Under the accommodation scheme, the ac t of opting out relieves objecting religious non-profit organizations from comp lying with the Mandat e and excuses them from participating in the provision of contra ceptive coverage. The Departments designed the accommodation so that, upon receipt of the Form or a notification from the government, health insurance issuers and TPAs—not the objecting religious non-profit organization—provide contraceptive coverage and ensure the organization will not be required to provide, pay for, or ot herwise facilitate that coverage. See Mich. Catholic Conf. , 755 F.3d at 391. We review this fe ature of the accommodation scheme to show how it eliminates burdens Plaintiffs otherwis e would face, similar to the burdens the forprofit plaintiffs faced in Hobby Lobby

. First, the regulations specify a health in surance issuer must handle contraceptive coverage separately from the insurance provided under the religious non-profit organization’s plan. A group health insurance i ssuer that receives a copy of the self-certification or notification . . . must (A) Expressl y exclude contraceptive coverage from the group health insurance coverage pr ovided in connection with the group health plan; and (B) Provide separate payments for any contraceptive services required to be covered u nder § 147.130(a)(1)(iv) for plan participants and beneficiaries for so long as they rema in enrolled in the plan.- 44 - 45 C.F.R. § 147.131(c)(2)(i). 26 Second, after a religious non-profit organiza tion opts out, a health insurance issuer may not share the costs of providing contra ception with the employer or employees. With respect to payments for contracep tive services, the [h ealth insurance] issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indi rectly, on the eligible organization, the group health plan, or pl an participants or benefici aries. The issuer must segregate premium revenu e collected from the elig ible organization from the monies used to provide paym ents for contraceptive services. 45 C.F.R. § 147.131(c)(2)(ii); see also 26 C.F.R. § 54.9815-27 13A(c)(2)(ii); 29 C.F.R. § 2590.715-2713A(c)(2)(ii). TPAs are subject to similar requirements. See 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). Finally, a health insurance issuer or TPA must, in communicating with plan participants or beneficiaries, send separate notice regarding contraceptive coverage from other plan notifications and make clear the employer neither administers nor funds contraceptive benefits . A health insurance issuer or TPA must provide to plan participants and beneficiaries written notice of the availability of separate paymen ts for contraceptive services contemporaneous with (to the extent possible), but separate from, any application materials distributed in connection with enrollment (or reenrollment) in group health coverage that is effec tive beginning on the first day of each applicable plan year. The notice must specify that the eligible organization does not administer or fund contraceptive benefits, but that the third party administrator or issuer, as applicable, provides separate

26 TPAs are not subject to this provision. Instead, a TPA that receives the Form or a notification from the government must pr ovide or arrange for contraceptive coverage for plan participants and benefi ciaries if it wishes to remain the TPA for the group health plan. See 26 C.F.R. § 54.9815-271 3AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).- 45 - payments for contraceptive services, a nd must provide contact information for questions and complaints. 26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d); see also 45 C.F.R. § 147.131(d). All of the foregoing remove the objecti ng religious non-profit organizations from providing contraceptive coverage, but Plaintiffs argue these pr otections of their religious liberty are insufficient because they still must deliver a Form or notify HHS to opt out of the Mandate. They contend this act substan tially burdens their religious exercise because it “triggers” the provision of contraceptive co verage, makes them complicit in the larger delivery scheme, and demands their ongoi ng involvement. We disagree. The accommodation relieves Plaintiffs of their st atutory obligation to provide contraceptive coverage to their plan partic ipants and beneficiaries, and as we discuss below, taking advantage of that accommodation is not a s ubstantial burden on religious exercise.
3. The Accommodation Scheme Does No t Impose a Substantial Burden To explain why the accommodation sc heme does not substantially burden Plaintiffs’ religious exercise, we look at th e theories argued by th e Plaintiffs and why they fail.

a. Opting out does not cause contraceptive coverage. Although the accommodation scheme frees Pl aintiffs from providing, paying for, or facilitating contraceptive coverage, they contend that, by deliv ering the Form or notifying HHS, they nevertheless “trigger” or cause contraceptive coverage. They do not. As we explain below, Plaintiffs’ causa tion argument misconstrues the statutory and- 46 - regulatory framework. Federal law, not the Form or notification to HHS, provides for contraceptive coverage without cost sharing to plan participants and beneficiaries. Because the mechanics of the accommodation sche me differ slightly for different types of plans, we examine how the regulations work for insured plans, self-insured plans, and self-insured church plans. But in each circ umstance, Plaintiffs’ causation argument fails to establish any burden on Plain tiffs’ religious exercise. i. Insured Plans The plaintiffs with insured plans deal dir ectly with a health insurance issuer and do not use a TPA. 27 They argue the accommodation sc heme levies a s ubstantial burden on their religious exercise because “insurance issuers will sell [them] plans that either (a) expressly include abortifacients; or (b) functionally include abortifacients by guaranteeing separate payments for them upon [their] execution and convey ance of the selfcertification to the issuer.” SN Br. at 18. We disagree. The regulations do not burde n the religious exercise of employers using insured plans. The ACA obligates both group health plans and health in surance issuers to provide contraceptive coverage. A religious non-profit organizati on may comply with the Mandate and provide coverage to its em ployees, opt out using the accommodation, or not comply with the law and pay fines. But in each instance, the he alth insurance issuer

27 The plaintiffs with in sured plans are Oklahoma We sleyan University and Oklahoma Baptist University. Southern Nazare ne also has an insured plan for students and claims above $100,000.- 47 - must ensure the organization’s employ ees receive contraceptive coverage. By delivering the Form or notifying HHS, an organization with an insured plan does not enable coverage—to the contrary, it si mply notifies its heal th insurance issuer the organization will not be prov iding coverage. The health in surance issuer then has an independent and exclusive obligation to provide that coverage without cost sharing. The relevant regulation states: “When a self-certifi cation is provided directly to an issuer, the issuer has sole responsibility for providing such coverage in accordance with § 147.130.” 45 C.F.R. § 147.131(c)(1)(i). Because the AC A obligates health in surance issuers to provide contraceptive coverage , they must meet this ob ligation indepe ndently and irrespective of the notification. The self-c ertification does not impose any responsibility; it merely makes it the issuer’s sole responsibility rather than one shared w ith the group health plan itself. Because federal law requires the health in surance issuer to pr ovide coverage and the accommodation process removes an objec ting organization from participating, plaintiffs with insured plans fail to show the accommodation burdens their religious exercise. The insured plaintiffs are not burdened when they are relieved of their responsibility and their insurers provide covera ge as required by independent obligations set out in the ACA. ii. Self-Insured Plans The accommodation scheme permits religious non-profit organizations with selfinsured plans to opt out by de livering the Form to their TP A or notifying HHS that they- 48 - have a religious objection and will not comply with the Mandate. When the objecting organization opts out, the TPA that administer s its group health plan is responsible for providing contraceptive c overage if it wishes to remain a TPA for the plan. In this section, we address this self-insured arrangeme nt. In the next sect ion, we consider the subset of self-insured plaintiffs having church plans over which the government lacks enforcement authority under ERISA to compel the TPA to comply with its legal obligations. 1) Plaintiffs’ argument The only plaintiff with a self-insured plan subject to ERISA is Southern Nazarene. Southern Nazarene argues the accommodation sc heme substantially burdens its religious exercise because the scheme requires it to “comply with the Mandate by either (a) setting up a self-insured plan that includes abortifacien ts; or (b) setting up a self-insured plan that functionally includes abortifacients by guaran teeing separate payments for them by the TPA upon the entity’s execution of the self-cer tification.” SN Br. at 18. Self-insured plaintiffs with ERISA-exempt chur ch plans make similar claims. Plaintiffs and the dissent emphasize that the TPA may arrange or provide coverage only after a religious non- profit organization opts out. 28 We consider this to be an

28 In University of Notre Dame , Judge Posner said: “B y refusing to fill out the form Notre Dame would subject itself to pe nalties, but Aetna and Meritain would still be required to provide the services to th e university’s students and employees.” Univ. of Notre Dame , 786 F.3d at 614. We understand the mechanics of the acco mmodation to work differently. Aetna, as a health insurance issuer for Notre Dame’s students, would be obligated to provide Continued . . .- 49 - uncontested and unremarkable f eature of the accommodation scheme. 29 The regulations state that when a religious non-profit orga nization opts out of providing contraceptive coverage, the TPA is notified that the or ganization will not administer or pay for contraceptive coverage, and that it must pr ovide or arrange for contraceptive coverage without cost sharing if it wishes to continue administering the plan. 26 C.F.R. § 54.9815- 2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2 ). The TPA is author ized and obligated to provide the coverage guaranteed by the ACA only if the religious non-profit organization that has primary responsibility for contraceptive coverage opts out of providing it. Plaintiffs suggest this shift in legal responsibility for contraceptive coverage substantially burdens their re ligious exercise under RFRA. They argue their opting out would trigger, cause, or offer a “permission slip” for the delivery of contraception by allowing their TPA to provide the coverage. Southern Nazarene , 2013 WL 6804265, at

______________________________________ Cont. contraceptive coverage under the ACA whether or not Notre Dame de livered the Form or notification to HHS. See 42 U.S.C. § 300gg-13. Meritain, a TPA, would be obligated to provide contraceptive coverage only after Notre Dame deliver ed the Form or notification to HHS and opted out of the Mandate. See 26 C.F.R. § 54.9815-271 3AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).

29 Even the dissent in Wheaton College recognized that a TPA need only provide the legally required contraceptive coverage wh en a religious non-pr ofit organization takes advantage of the accommodation scheme. As Ju stice Sotomayor observed, “a third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification.” Wheaton Coll. , 134 S. Ct. at 28 14 n.6 (Sotomayor, J., dissenting from grant of injunction pending appeal).- 50 - *8. We disagree. 2) Opting out does not cause coverage The ACA requires all group health plans to cover preventive services, including contraception, without cost sharing. Because a group health plan must include contraceptive coverage under the ACA, th e accommodation scheme requires a TPA that administers a self-insured religious non-profit organization’s group health plan to provide coverage if the organization opts out. Th e TPA must then arrange coverage for plan participants and beneficiaries if it wishes to continue f unctioning as the TPA for the objecting organization. This arrangement allo ws religious non-profit organizations to opt out and ensures plan participants and be neficiaries will receive the contraceptive coverage to which they are entitled by law. Under this framework, the plaintiffs’ ar gument does not identify a substantial burden on religious exercise. The opt out does not “cause” contraceptive coverage; it relieves objectors of their coverage responsibility , at which point federal law shifts that responsibility to a different actor. The AC A and its implementi ng regulations have already required that group health plans will include contraceptive coverage and have assigned legal responsibilities to ensure su ch coverage will be provided when the religious non-profit organization opts out. See Wheaton College v. Burwell , No. 14-2396, 2015 WL 3988356, at *4 (7 th Cir. July 1, 2015); E. Tex. Baptist Univ. , 2015 WL 3852811, at *5-6; Univ. of Notre Dame , 786 F.3d at 613-14; Geneva Coll. , 778 F.3d at- 51 - 437-38; Priests for Life , 772 F.3d at 254-55. 30 This arrangement is typical of religious objection accommodations that shift responsib ility to non-objecting entities only after an objector declines to perform a task on religious grounds. 31 Although a religious nonprofit organization may opt out from providi ng contraceptive coverage, it cannot preclude

30 To the extent Plaintiffs are specifica lly concerned about the language on the Form, that concern can be alleviated by taking advantage of the expanded accommodation and notifying HHS in writing. Plaintiffs need not use any terms they consider morally charged, like “certify, ” in their letter or email to HHS. We further note the notification to HHS re quires self-insured plaintiffs only to register their objection and identify their TP A—it does not require them to inform their TPA of any legal responsibilities to provide c ontraceptive coverage. When the opt out is submitted to HHS, the plaintiffs are relieve d of their responsibilities. The government then takes steps to ensure that coverage is provided—HHS notifies the Department of Labor of the objection, and the Department of Labor then contacts the TPA to inform it of its duties under the ACA.

31 Analogizing the opt out to co nscientious objections to war, see, e.g. , Priests for Life , 772 F.3d at 245-46; Univ. of Notre Dame , 786 F.3d at 623-24 (Hamilton, J., concurring), should not overshadow the diverse a rray of mechanisms that federal, state, and local governments have used to accommoda te objectors. Many religious objection schemes require an affirmative opt out before another person is requir ed to step in and assume responsibility, and may require the objector to id entify a replacement in the process. See, e.g. , 2015 Utah Laws Ch. 46 (accommoda ting religious objections to samesex marriage of those working in county clerks’ offices by requiring that “[a] county clerk shall . . . establish policies to ensure that the county clerk, or a designee of the county clerk who is willing, is available during business hours to solemnize a legal marriage for which a marriage license has been issued”); Stormans Inc. v. Selecky , 844 F. Supp. 2d 1172 (W.D. Wash. Fe b. 22, 2012) (reinstating a “r efuse and refer” approach where pharmacies need not pr ovide contraception so long as they refer patients to alternative providers); Conn . Agencies Regs. § 19a-580d -9 (requiring health care providers who object to implementing a do-not-re suscitate order to “turn over care of the patient without delay to another provider wh o will implement the DNR order”); Internal Revenue Service, Tax Guide for Churches & Religious Organizations 18 (2013), www.irs.gov/pub/irs-pdf/p1828.pdf (explaini ng that a church may opt out of paying Social Security and Medicare taxes for religi ous reasons, shifting that responsibility to their employees to pay those taxes as though they were self-employed).- 52 - the government from requiring others to pr ovide the legally required coverage in its stead. 32 In short, the framework established by federal law, not the actions of the religious objector, ensures that plan pa rticipants and beneficiaries will receive contraceptive coverage. 33

32 Plaintiffs argue that, under the accomm odation scheme, organizations with selfinsured plans participate in the delivery of contraceptive coverage because their TPAs cannot arrange for that coverage unless a nd until plaintiffs deliver the Form or notification to HHS. We discuss above wh y this characterization of the accommodation scheme is incorrect, but we note here that th is concern is specific to self-insured plans subject to ERISA. Plaintiffs could avoi d the situation they deem objectionable by employing an insured plan, employing a self-i nsured church plan where the Departments lack authority to enfo rce the Mandate against their TPA, or administering the self-insured plan on their own in-house without using a TPA. Although the dissent notes that inhouse administration is complex, Dissent at 22-23, Plaintiffs have not demonstrated it would be a substantial burden under RFRA. The fact that this alternative may be more expensive or difficult for plaintiffs does not necessarily make it a substantial burden. See Braunfeld , 366 U.S. at 605-06.

33 In this regard, the accommodation scheme here is comparable to a conscientious objector accommodation scheme, which provides for someone to replace the objector when he opts out of military service. See Priests for Life , 772 F.3d at 245-46; see also Univ. of Notre Dame , 786 F.3d at 623-24 (Hamilton, J., concurring). Indeed, the conscientious objector scheme is administra tively more burdensome than filing the Form or notifying HHS to opt out of the Mandate. A conscientious objector must register in the Selective Service System before being able to apply for an exem ption, must complete an application and appear for an in-person interview, and, if the exemption is granted, must perform two years of service for the government in lieu of military service. See 50 U.S.C. § 456j. The dissent points to differences betwee n the religious accommodation here and the conscientious objector scheme. But the comp arison is apt. Courts have recognized that, to opt out of military service for religious reasons, a conscientious objector must notify the government of his objection knowing that someone else will take his place. See Trans World Airlines v. Hardison , 432 U.S. 63, 96 n.13 (1977) (Marshall, J., dissenting) (recognizing that “the effect of excusing conscientious objectors from military conscription is to require a nonobjector to se rve instead, yet we have repeatedly upheld this exemption”); Sheridan v. United States , 483 F.2d 169, 174 (8th Cir. 1973) Continued . . .- 53 - 3) Response to dissent The dissent argues that our reasoning fails to appreciate the difference between insured and self-insured plans. With insured plans, the health insurance issuer bears legal responsibility to provide contraceptive covera ge whether or not the religious non-profit has opted out. With self-insured plans, the TPA shoulders le gal responsibility for coverage only after the religi ous non-profit has opted out.

______________________________________ Cont. (acknowledging that when th e plaintiff evaded induction, “another person had to be called in his place”); McKenzie v. Schuppener , 415 F.2d 1056, 1058 (5th Cir. 1969) (characterizing a conscientious objection app lication as “the situation where appellant must go to Vietnam or someone else go in his place”). Similarly, to opt out of the Mandate, the self-insured religious objector must notify the government knowing that a TPA will take its place. And historically, it is not unprecedented to require an objector to identify a substitute for military service. To the contrary, the first federal draft statute permitted a draftee to avoid service only by either providing a substitute or paying $300. See Act of March 3, 1863, ch. 75, § 13, 12 Stat. 731, 733 (1863). As the dissent observes, the Civil War Enrollment Act sparked riots, Dissent at 14-15 n.7, but these were triggered by opposition to the draft itself, the inability of working cl ass people to pay the $300 exemption, and anxiety about freed slaves entering the labor market after the war—not the fact that the draft law allowed draft ees to name a substitute in their place. See Leslie M. Harris, In the Shadow of Slavery: Afri can Americans in New Yo rk City, 1626-1863, at 279-88 (2003). Although C ongress later eliminated the $300 commutation fee (except for conscientious objectors), it retained the provision allowing enrollees to supply a substitute. See Act of July 4, 1864, ch . 237, §§ 2, 10, 11, 13 Stat. 379, 379-80 (1864). To the extent the dissent suggests Chief Justice Taney’s thoughts on the topic are relevant, Dissent at 14-15 n. 7, we note that he cons idered conscription itself unconstitutional, not the substitution provision. See Leon Friedman, Conscription and the Constitution: The Or iginal Understanding , 67 Mich. L. Rev. 1493, 1546-48 (1969). In fact, Chief Justice Taney paid $100 to excuse his “ body servant” from the draft. See Bernard C. Steiner, Life of Roger Brooke Taney: Chief Justice of the United States Supreme Court 511-12 (1922).- 54 - We agree this is a distinction between these types of plans, but the dissent overplays its importance. See Dissent at 5 (deeming the difference between insured and self-insured plans “the critical distinction”). 34 In both contexts, the ACA requires that group health plans cover cont raceptive services, and a plaintiff knows coverage will be provided when it opts out. Plaintiffs do not dispute plan participan ts and beneficiaries’ right to contraceptive coverage, nor do they contest the government’s ability to require TPAs and health insurance issuers to arrange for such coverage when a religious nonprofit organization opts out. The only question before us is whether the plaintiffs are substantially burdened when they notify the government of their objection with the knowledge that another party will be required to provide coverage in their stead. The answer is no. A religious accommodation tries to reconcile re ligious liberty with the rule of law. When faced with an unavoidable conflict be tween following the law or religious belief, RFRA provides a religious objector a means to challenge a generally applicable law and seek an exception to avoid following that la w without having to break it. A statutory accommodation, as we have here, serves the sa me purpose. As noted above, this case is

34 Although the Mandate in the insured pl an context assigns responsibility to provide contraceptive coverage to both the relig ious non-profit organi zation and its health insurance issuer, we do not believe this is the only permissible arrangement to permit religious accommodation. Requiring all accomm odations to follow th is model would be duplicative, costly, and impractical, and w ould foreclose a wide range of pragmatic arrangements that bring in substitutes when a nd only when a religious objector opts out of performing a task. See, e.g. , supra note 31.- 55 - unusual because the Plaintiffs do not seek an accommodation where none exists, but instead challenge a statutory accommodation and argue that the process for seeking refuge in it substantially burden s their religious exercise. As to the self-insured plaintiffs, the dissent contends that if they opt out a nd transfer their duty to provide contraceptive coverage to the TPA, they necessarily cause such coverage. We disagree. By opting out, the self-insur ed plaintiffs shift their dut y to provide coverage to a TPA, but they do not change their plan pa rticipants and beneficiaries’ entitlement to contraceptive coverage under federal law. 35 The dissent suggests, however, that because the plaintiffs can stymie coverage to thei r employees by breaking the law and incurring fines, and because opting out ultimately resu lts in the TPAs’ providing coverage, the plaintiffs’ opting out therefore would cau se contraceptive coverage. But this misconstrues the purpose of religious accomm odation: to permit the religious objector both to avoid a religious burden and to comply with the law. If th e plaintiffs wish to avail themselves of a legal means—an ac commodation—to be excused from compliance

35 The dissent attempts to distinguish between health plan beneficiaries’ entitlement to coverage and their actual recei pt of coverage. This distinction breaks down under inspection. If a religious no n-profit complies with the law by providing coverage, the beneficiaries are entitled to and receive coverage. If the non-profit opts out as the law allows, the beneficiaries likewise ar e entitled to and receive coverage, they just do not receive it from the non-prof it. Only if the non-profit disobeys the law and refuses either to provide coverage or opt out would the benefici aries not receive coverage (though they would still be entitled to it). If the opt out were not part of the law, the plaintiffs would be in the same position as the for-profits in Hobby Lobby —without a legal option to avoid providing coverage. But the accommodation scheme gives the plaintiffs a legal avenue to avoid providing coverage as opposed to non-compliance with the law with the attendant financial penalties.- 56 - with a law, they cannot rely on the possibility of their viola ting that very same law to challenge the accommodation. In making this argument, the dissent fo cuses almost exclus ively on whether the plaintiffs’ opt out is a but-for cause of th e TPAs’ authority to provide contraceptive
coverage. 36 It does, but this approach misse s the mark. Althou gh opting out is necessarily a but-for cause of someone else—the TPA—providing contraceptive coverage, that is the point of an acco mmodation—shifting a responsibility from an objector to a non-objector. That is how a legislative policy choice—here, to afford women contraceptive coverage—can be reconc iled with religious objections to that policy. We do not “den[y] the existence of a ny causation.” Dissent at 10. We instead correctly identify the effect of opting out. The effect is to shift legal responsibility from the self-insured plaintiff to its TPA and re lieve the plaintiff of the duty it considers objectionable. The effect is not the provisi on of contraceptive cove rage, which would be afforded under the law whether or not the plaintiff opts out.

36 Plaintiffs and the dissent characterize the self-certification as giving the TPA “permission” to provide contraceptive coverage . Dissent at 9. This characterization ignores that the self-certification specifically registers an objection to providing coverage, relieves the plaintiffs of their obligation to provide it, and affirm atively distances the plaintiffs in numerous ways from providi ng coverage to plan participants and beneficiaries. See supra Section V.B.2. Equating the opt out to a permission slip is akin to “disregard[ing] the difference between a ‘No Trespassing’ sign and a welcome mat.” Adarand Constructors, Inc. v. Pena , 515 U.S. 200, 245 (1995) (Stevens, J., dissenting). The government is not compe lling the plaintiffs to endors e or license something they consider objectionable; instead, the govern ment is allowing them to decline a legal responsibility while requiring another pa rty to perform it in their stead.- 57 - The ACA requires that either the religi ous non-profit organization or the TPA must provide contraceptive coverage for a self-insured group health plan, and the accommodation must be evaluated with that pr ovision in mind. The scheme allows the religious non-profit organizatio n to opt out of the responsi bility of providing coverage and assigns that duty to the TPA administeri ng the group health plan. Crucially, it does not change or expand contraceptive covera ge beyond what fede ral law has already guaranteed. As the Supreme Court said in Hobby Lobby , the effect of the accommodation on employees “w ould be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.” 134 S. Ct. at 2760. The government has designed the accommoda tion so plaintiffs that opt out are freed from providing, paying for, or fa cilitating contraception, and the TPA’s responsibility to provide coverage in their st ead stems from federal law. Because this arrangement does not substantially burden the pl aintiffs when they co mply with the law, it does not matter whether the plaintiffs could prevent plan participants and beneficiaries from receiving coverage by violating the law. The dissent seems to suggest the ACA and its implementing regulations give self-insured plaintiffs disc retion to decide whether their employees receive contraceptive coverage. The ACA and its impl ementing regulations do not, and the plaintiffs do not contend that they do. To the contrary, federal law generally requires that all people must have he alth insurance and that all health insurance must include preventive services, in cluding contraceptive coverage. See 42 U.S.C.- 58 - § 300gg-13. 37 And “although [the ACA] does not specifically mention third-party administrators, they administ er ‘group health plans,’ wh ich must include coverage. Nothing suggests the insurers’ or third-party administrators’ obligati ons would be waived if the plaintiffs refused to apply for the accommodation.” E. Tex. Baptist Univ. , 2015 WL 3852811, at *5 (alterations omitte d). The accommodation scheme does not give plaintiffs discretion to thwart their employees’ right to contraceptive coverage by refusing to provide coverage and also refusing to regi ster their objection so the government can make alternative arrangements to fr ee them from providing coverage. 38 Because Congress has created a federal entitlement to contraceptive coverage and formulated a framework to guarantee that coverage will be provided even if plaintiffs decline to provide it, self-insured plaintiffs do not “ cause” contraceptive coverage by exercising their ability to opt out. 4) No cause of substantial burden In sum, the self-insured plaintiffs’ causal analysis falters regarding the effect of opting out, which is to shift legal responsibility to provide contraceptive coverage from

37 The dissent asks, “if the self-insured pl aintiffs do not opt out, who will provide the coverage for their plan par ticipants and beneficiaries?” Di ssent at 8. The answer is the self-insured plaintiffs, if they comply with the law. But this is the reason for the opt out: to allow the plaintiffs a legal means to avoid providing coverage.

38 In the absence of any such discretiona ry power or responsibility, plaintiffs are not faced with the Hobson’s choice the dissent de scribes. Dissent at 7-8, 12, 23. To the contrary, the accommodation eliminates any Hobs on’s choice by allowing plaintiffs to opt out of providing coverage.- 59 - plaintiffs to their TPAs. When the govern ment establishes a scheme that anticipates religious concerns by allowing objectors to opt out but ensuring that others will take up their responsibilities, plainti ffs are not substantially burd ened merely because their decision to opt out cannot prevent th e responsibility from being met. To establish a claim under RFRA, about wh ich the dissent says little, a plaintiff must show the government subs tantially burdens its sincere religious exercise. The ACA states group health plans must cover contrace ption, and the regulations state that if a religious non-profit organizatio n opts out, that coverage will be provided by a TPA. Opting out does not cause the co verage itself; federal law does, by establishing a scheme that permits plaintiffs to opt out of their legal responsibility while simultaneously ensuring that plan participants and benefici aries receive the coverage to which they are legally entitled. Allowing plaintiffs to opt out is not a substantia l burden under RFRA. 39

39 The dissent’s theory of causation is not viable for the reasons discussed above. We also fail to see how it comports with the Supreme Court’s orders in Wheaton College , 134 S. Ct. 2806, and Zubik , 2015 WL 3947586. In Part II.B.1, the dissent objects that “a third party’s legal authority ( i.e. permission) to provide the co verage is wholly dependent upon ( i.e. caused by) the self-insured non-profit opting out.” Dissent at 9. But that would be equally true of the arrangement pr oposed in the Supreme Court’s orders in Zubik , which enjoined the Mandate only “[i]f the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a) or 29 CFR §2590.715-2713A(a) or 45 CFR §147.131(b) (as applicable),” 2015 WL 3947586, at *1, and Wheaton College , which enjoined the Manda te only “[i]f the app licant informs the Secretary of Health and Human Services in writing that it is a nonpr ofit organization that holds itself out as religious and has religious objec tions to providing coverage for contraceptive services,” 134 S. Ct. at 2807. (The plaintiffs in Zubik are self-insured and use TPAs. See Geneva College , 778 F.3d at 433. Wheaton College employs various insurance arrangements, but uses a TPA to deliver a portion of its c overage—specifically, its prescription drug Continued . . .- 60 - iii. Self-Insured Church Plans The foregoing analysis of self-insured plan s applies to the subset of self-insured church plans. We address additional reasons here to reject the church plan plaintiffs’ RFRA claims. The plaintiffs with self-insured church plans are in a unique position. 40 A TPA cannot be compelled to provide or arrange fo r contraceptive coverage if it administers a church plan under 26 U.S.C. § 414(e) that has not elected to comply with provisions of ERISA under 26 U.S.C. § 410(d)—which descri bes the self-insured church plans in the cases before us. The Departments concede they lack authority under ERISA to force these church plan TPAs to perform their regu latory responsibility. See 29 U.S.C. § 1003(b)(2). As a result, the Government can require the plaintiffs with self-insured church plans to use the Form or notify HHS to register their objectio n and opt out, but it has no enforcement authority to compel or pena lize those plaintiffs’ TPAs if they decline

______________________________________ Cont.
coverage. See Wheaton College v. Burwell , 50 F. Supp. 3d. 939, 944 (N.D. Ill. 2014).) Wheaton College had already submitted a notice of its objection to the government, but the Supreme Court did not limit the injunction to that factual scenario. As Justice Sotomayor observed, “because Wheaton is materially indistinguishable from other nonprofits that object to the Government’s accommodation, the issuance of an injunction in this case will presumably en title hundreds or thousands of other objectors to the same remedy.” Wheaton College , 134 S. Ct. at 2814 n.6 (S otomayor, J., dissenting).

40 The plaintiffs with self-i nsured church plans include the Little Sisters, Reaching Souls, Truett-McConnell, and Mid-America Chris tian. The analysis in this section also applies to the plaintiffs that operate or ad minister self-insured church plans, which include the Christian Brothers Employee Benef it Trust, Christian Br others Services, and GuideStone Financial Resources.- 61 - to provide or arrange for contraceptive coverage. 41
The lack of enforcement au thority makes any burden on plaintiffs with church plans even less substantia l than the burden on plaintiffs with self-insured plans that are subject to ERISA. Nonetheless, plainti ffs with church plan s offer the following arguments as to why the accommodation sc heme might still burden their religious exercise. First, the Departments could decide to alter the regulations and assert authority over church plans under ERISA. Second, the mere act of signing the Form or delivering the notification may involve them in the pr ovision of contraception, either by cooperating with the Departments or by providing author ization to a TPA, which then decides it wants to provide contraceptive co verage after all. Third, their opting out incentivizes TPAs to provide coverage even if they are exempt from ERISA. Fourth, the Government has not demonstrated why the pl aintiffs must complete the se lf-certification if their TPAs can decline to provide contraceptive coverage. In add ition to the reasons self-insured plans in general are not substantially burdened by the accommodation scheme, we

41 If TPAs for self-insured church plan s decide not to provide contraceptive coverage, plan participants a nd beneficiaries would not get the coverage to which they are otherwise entitled under the ACA. The disse nt suggests it is paradoxical to maintain the ACA ensures plan participants and benefi ciaries will receive contraceptive coverage and also acknowledge TPAs for self-insured c hurch plans may in fact decline to provide that coverage. Dissent at 11 n.4. The positions are consistent. The ACA requires all group health plans to provide contraceptive coverage, but because it can only enforce that requirement through ERISA, church plans th at are exempt from ERISA do not face any consequences if they fail to meet it. Put differently, th e ACA creates a legal duty for all group health plans, but the Government canno t enforce that duty against a narrow subset of self-insured church plans. The inability to en force that duty does not mean the duty does not exist.- 62 - conclude the plaintiffs with se lf-insured church plans have failed to identify a substantial burden on religious exercise. 1) Hypothetical regulation The plaintiffs argue the Departments coul d assert authority over church plans under ERISA at some point in the future. We assess the re gulations as they currently exist, not amendments to ERISA’s implemen ting regulations the Department of Labor may hypothetically promulgate. An “[i]njunc tion issues to prevent existing or presently threatened injuries. One will not be granted against something merely feared as liable to occur at some indefinite time in the future.” Connecticut v. Massachusetts , 282 U.S. 660, 674 (1931). Should the Depart ments assert ERISA authority over church plans at some later date, plaintiffs may then seek a pre liminary injunction to prevent the Departments from enforcing the Mandate. Unless and until the Departments change their position, however, plaintiffs’ speculative argument does not warrant a preliminary injunction. See Crowe & Dunlevy, P.C. v. Stidham , 640 F.3d 1140, 1157 (10th Cir. 2011). 2) No causation from church plan TPA notification The plaintiffs contend co mpleting the self-certification would be a substantial burden because it would allow TPAs to provide coverage to their group health plan participants and beneficiaries, even if the Departments cann ot compel the TPA to do so under ERISA. But plaintiffs with self-i nsured church plans are not substantially burdened by the requirement that they complete the Form or notification to HHS. As we explained in the previous s ection on self-insured plans, when a religious non-profit- 63 - organization opts out of the Mandate, the requi rement that the group health plan include contraceptive coverage is a product of federa l law, not the product of the organization’s opting out. Opting out frees pl aintiffs from their obligati on to provide contraceptive coverage under the ACA. The lack of substa ntial burden is especia lly evident when the group health plan is administered by a TP A that has made clear it will not provide contraceptive coverage on religious grounds. The Little Sisters’ TPA, for example, is Christian Brothers, their co-plain tiff in this case. It is clea r Christian Brothers need not, and will not, provide c ontraceptive coverage if the Little Sisters opt out of the Mandate. 42 3) No incentive from church plan TPA notification Even when TPAs for self-ins ured church plans indicate they may comply with the Mandate, the TPAs make that decision, and the objecting religious non-profit organization is not substantially burdened. The plaintiffs in Reaching Souls argue one of their TPAs, Highmark, has indicated it will provi de contraceptive coverage if they opt out of the Mandate. The Reaching Souls plaintiffs argue their act of opting out would not only provide Highmark with permission to provide contraceptive coverage, but would incentivize it to do so because Highmark could then seek reimbursement from the government. Plaintiffs fail to demonstrat e the reimbursement provision actually gives TPAs an incentive to provide coverage. They claim a TPA that receives the Form or a letter from

42 Plaintiff TPAs that administer church plans are not substantially burdened for similar reasons. In the absence of any en forcement power, the Government cannot levy fines against them for declining to provide contraceptive coverage.- 64 - the government “becomes elig ible for government paymen ts that will both cover the TPA’s costs and include an additional payment (equal to at least 10% of costs) for the TPA’s margin and overhead.” LS Br. at 16. At a hearing in Reaching Souls , counsel for the Government seemed to accept this charac terization. But the regulations themselves expressly contradict this reading. They st ate the payment for margin and overhead goes to health insurance issuers who act as interm ediaries for the reimbursement, and need not go to TPAs. 43 See 45 C.F.R. § 156.50(d)(5) (specifyin g health insurance issuers must reimburse TPAs for “the portion of the adjust ment attributable to the total dollar amount of the payments for contraceptiv e services submitted by the th ird party administrator” but that “[n]o such payment is required with resp ect to the allowance fo r administrative costs and margin”). Moreover, even if TPAs were to receiv e a payment for margin and overhead—set at 15% of costs for 2014—plaintiffs do not de monstrate this allowance actually functions as an incentive to provide contraceptive coverage rather than repayment for the administrative costs TPAs incur by stepping in to arrange for or provide coverage. Plaintiffs have not demonstrated the a llowance for administrative overhead actually

43 The Departments credit the health insu rance issuer for (1) the total dollar amount of the TPA’s payments for contracep tive coverage, and (2) an allowance of at least 10% for administrative costs and margin. See 45 C.F.R. § 156.50(d)(3). The health insurance issuer then pays th e TPA for the total dollar amount of the TPA’s payments for contraceptive coverage, but is not required to pay the TPA the allowance for administrative costs and margin. See 45 C.F.R. § 156.50(d)(5). As a result, the regulations require only that a TPA receive repayment for what it has actually spent providing contraceptive coverage. A reimbursement sole ly for costs incurred would not generate a profit or offer any incentiv e to provide contra ceptive coverage.- 65 - generates a profit for TPAs, nor have they demonstrated that the allowance would incentivize TPAs to provide coverage where they otherwise would not. 4) The Government may require affirmative objection Plaintiffs finally argue that if the Depa rtments lack ERISA en forcement authority against TPAs of self-insured church plans, the Government has no reason to require religious non-profit organizatio ns to comply with the accommodation scheme and deliver the Form or notify HHS. It is the plaintiffs’ burden, however, to state a prima facie case under RFRA. Because they ca nnot establish that signing the Form or notifying HHS constitutes a substantial burde n on their religious exerci se, we do not question the Departments’ interest in requiring them to opt out of the Mandate to avoid penalties for failure to provide contraceptive coverage. 44
* * * * We conclude the Plaintiffs’ causation ar guments do not establish a burden on their religious exercise, much less a substantial bur den, because opting out would not trigger,

44 The Departments have a sound reason to require an affirmative opt out—not all religious organizations share the beliefs ofthe Little Sisters, Reaching Souls, TruettMcConnell, and Mid-America Christian. Th e parties agree that the Departments can require non-objecting employers to provide contraceptive coverage under their group health plans. To enforce that genera l requirement, the Departments may require objecting employers to affirmatively voic e their objection instead of assuming all religious non-profit organizations share the plaintiffs’ beliefs.- 66 - incentivize, or otherwise cause the pr ovision of contraceptive coverage. 45 We therefore turn to Plaintiffs’ argument th at the act of opting out and the administrative requirements associated with the accommodation make them feel or appear complicit in the overall contraceptive coverage scheme.

e. No substantial burden from complicity The accommodation relieves Plaintiffs from providing, paying for, or facilitating contraceptive coverage, and federal law requi res health insurance issuers and TPAs to provide contraceptive coverage when religious non-profit orga nizations take advantage of the accommodation. Plaintiffs argue th e act of opting out would nevertheless substantially burden their relig ious exercise because they be lieve delivering the Form or notification to HHS would make them co mplicit in the overall scheme to deliver contraceptive coverage. They wish to play no part in it. We find this argument unconvincing for a number of reasons. First, the purpose and design of the acco mmodation scheme is to ensure that Plaintiffs are not complicit—that they do not have to provide, pay for, or facilitate contraception. Plaintiffs’ con cern that others may believe they condone the Mandate is unfounded. Opting out sends the unambiguous message that they oppose contraceptive coverage and refuse to provide it, and doe s not foreclose them from objecting both to

45 Under these circumstances, as the Third Circuit observed, “the burden is not merely attenuated at the outset but totally disconnected from the appellees.” Geneva Coll. , 778 F.3d at 442.- 67 - contraception and the Mandate in the strongest possible terms. Second, to the extent Plaintiffs assert that completing the Form or notification violates their religious beliefs, they state a necessary but not a sufficient predicate for a RFRA claim. Under RFRA, they must establish that comple ting the Form or notification substantially burdens their relig ious exercise; otherwise, this argument could be used to avoid almost any legal obligation that involves a form. Plaintiffs do not object to signing forms and paperwork generally—they object to the Form or notificati on to HHS, and they do so because they believe it involves them in directly or indirectly providing, paying for, or facilitating contraceptive coverage, whic h they oppose as a matter of religious conviction. As we have explained, the Plai ntiffs misstate their ro le in the accommodation scheme. RFRA does not require us to defer to their erroneous view about the operation of the ACA and its implementing regulations. 46

46 Plaintiffs cite Thomas for the proposition that we cannot question the theological merit of their religious beliefs. See Thomas , 450 U.S. at 715 (“We see, therefore, that Thomas drew a line, and it is not for us to say that th e line he drew was an unreasonable one.”). We agree with that proposition, but we may—indeed, we must— determine whether the accomm odation scheme substantially burdens their religious exercise. In Thomas , Mr. Thomas believed he could not participate in the production of war materials. Id. at 709. The government argued M r. Thomas’s beliefs did not warrant protection by suggesting those beliefs were inconsistent and notshared by his coreligionists. Id. at 714-15. The Supreme Court specific ally rejected these attempts to impeach Mr. Thomas’s religious beliefs, id. at 715-16, but the Court was not confronted with the question of whether those beliefs were substantially burdened. Both the Supreme Court and the Tenth Circ uit have indicated that acce pting a plaintiff’s religious belief does not foreclose an inquiry into whethe r religious exercise ha s been substantially burdened. See, e.g. , Hernandez , 490 U.S. at 699; Kikumura , 242 F.3d at 961. Continued . . .- 68 - Third, because the accommodation does not involve them in providing, paying for, facilitating, or causing contraceptive coverage, Plaintiffs’ only involv ement in the scheme is the act of opting out. Plaintiffs ar e not substantially burdened solely by the de minimis administrative tasks this involves. All opt- out schemes require some affirmative act to free objectors from the obligatio ns they would otherwise f ace. The Plaintiffs’ logic would undermine conscientious objection schemes that require the objection to be made, relieve objectors of their obligations, but assi gn those obligations to other, non-objecting actors in their stead. See, e.g. , Gillette v. United States , 401 U.S. 437 (1971) (acknowledging a petitioner must complete an exemption application to obtain

______________________________________ Cont. The Government does not question Plainti ffs’ religious beliefs that contraception is sinful and they cannot be involved in providing, paying for, or facilitating contraceptive coverage. But Plaintiffs go beyond Thomas when they insist that we cannot question whether opting out makes th em complicit in prov iding contraceptive coverage. We may properly consider that opting out excuses them from providing coverage, does not cause that coverage to be extended to pl an participants and beneficiaries, and involves only routine admi nistrative tasks that are not substantial burdens under RFRA. See Little Sisters , 6 F. Supp. 3d at 12 39 (“Thus, Plaintiff’s contention that the Court canno t look behind their statements about what offends their religious beliefs is well-suppor ted. However, the Court is un der no such restriction with regard to Plaintiffs’ construction of ho w the Final Rules operate, including the administrative burdens imposed on th e parties by these regulations.”). For these reasons, Thomas is inapposite when the in quiry focuses on whether a burden is substantial. It does not precl ude courts from examining the relationship between a sincerely held religious belie f and the alleged burden imposed by the Government. This important distinction prev ents the Government from having to survive strict scrutiny whenever a plaintiff misunde rstands the burden being placed upon them— for example, if Mr. Thomas had been requi red to produce equipment for farming and sincerely, but incorrectly, believed that equipment was being produced for war. See, e.g. , Priests for Life , 772 F.3d at 249 n.14.- 69 - conscientious objector status in wartime); Welsh v. United States , 398 U.S. 333 (1970) (same). 47 Having to file paperwork or otherwise re gister a religious objection, even if one disagrees with the ultimate aim of the law at issue, does not alon e substantially burden religious exercise. The Government may therefore require religious objectors to complete de minimis administrative tasks to opt out. Filing the Fo rm or notifying HHS eas ily fits within this category. The Departments ha ve made opting out of the Ma ndate at least as easy as obtaining a parade permit, filing a simple tax form, or registering to vote—in other words, a routine, brief administrative task. The purpose of the Form or notification to HHS is to extricate Plaintiffs from thei r legal obligation to provide contraceptive coverage. Opting out ensures they will play no part in th e provision of contraceptive coverage, prohibits TPAs and h ealth insurance issuers from sh aring the costs of providing coverage with them, and requires notice to empl oyees that they do not administer or fund contraceptive services.

47 As other courts have observed, inva lidating the accommodation scheme would run contrary to many other laws allowing ob jectors to opt out of government programs and requirements. See Priests for Life , 772 F.3d at 245 (deeming Plaintiffs’ argument against the accommodation scheme “extraord inary and potentially far reaching”); Univ. of Notre Dame v. Sebelius , 743 F.3d 547, 557 (7th Cir. 2014), vacated and remanded sub nom. , Univ. of Notre Dame v. Burwell , 135 S. Ct. 1528 (2015) (“The novelty of Notre Dame’s claim—not for the exemption, which it has, but for the right to have it without having to ask for it—deserves emphasis. . . . What makes this case and others like it involving the contraception exem ption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption ar e claiming that the exemption process itself imposes a substantial burden on their religious faiths.”).- 70 - The notification to HHS is especially mini mal, as it requires Plaintiffs only to register their objection with HHS and does no t require any contact with their health insurance issuers or TPAs. Although Plaintiffs must te ll HHS which health insurance issuer or TPA they use to opt out of the Ma ndate, this is not a substantial burden on religious exercise. 48 It is the kind of administrative task the Departments can require of religious believers in the administ ration of governmental programs. See Priests for Life , 772 F.3d at 246; Tony & Susan Alamo Found. v. Sec’y of Labor , 471 U.S. 290, 305-06 (1985); see also Jimmy Swaggart Ministries v. Bd. of Equaliz. of Cal. , 493 U.S. 378, 395 (1990); Hernandez , 490 U.S. at 696-97. When u nderstood in light of the ACA’s requirement that group health plans and h ealth insurance issuers provide contraceptive coverage and the manner in which the acco mmodation relieves Plaintiffs of providing

48 Plaintiffs using the Form need only en ter the name of the objecting organization, name and title of the individual authorized to make the certification on behalf of the organization, and the mailing address, email address, and phone number of that individual. That person signs, dates, and sends the form to their TPA or health insurance issuer. Employers are required to keep the Form on file for six years. The Plaintiffs have leeway in drafting a notification to HHS, which need only include the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on sincerely held religious beliefs to providing coverage of some or all c ontraceptive services (including an identification of the subset of contrace ptive services to which coverage the eligible organization objects , if applicable); the plan name and type (i.e., whether it is a student health insuranc e plan within the meaning of 45 CFR 147.145(a) or a church plan within the meaning of ERISA section 3(33)); and the name and contact information for any of the plan’s third party administrators and hea lth insurance issuers. 79 Fed. Reg. at 51,094-95.- 71 - that coverage, identifying one’s TPA in a lette r to HHS is at most a minimal burden and certainly not a substantial one. Finally, Plaintiffs are not substantially burdened when, after they opt out and are relieved of their obligations under the Mandat e, health insurance issuers or TPAs must provide contraception to plan participants and beneficiarie s. Plaintiffs sincerely oppose contraception, but their religi ous objection cannot hamstring gov ernment efforts to ensure that plan participants and beneficiaries re ceive the coverage to which they are entitled under the ACA. “Religious objectors do no t suffer substantial burdens under RFRA where the only harm to them is that they sincerely fe el aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives af ter they opt out.” Priests for Life , 772 F.3d at 246. Pre- Smith case law and RFRA’s legislative history underscore that religious ex ercise is not substantially burdened merely because the Government spends its money or arranges its own affairs in ways that plaintiffs find objectionable. See Lyng v. Nw. Indian Cemetery Protective Ass’n , 485 U.S. 439, 450-54 (1988); Bowen , 476 U.S. at 699-700; Tony & Susan Alamo Found. , 471 U.S. at 303; S. Rep. No. 103-111, at 9 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1898 (“[P]re- Smith case law makes it clear that strict scrutiny do es not apply to government actions involving only management of internal Government a ffairs or the use of the Government’s own property or resources.”). RFRA does not prevent the Governme nt from reassigning obligations after an objector opts out simply because the objector strongly opposes the ultimate goal of the generally applicable law.- 72 - Plaintiffs’ complicity argument therefore fa ils. Opting out w ould eliminate their complicity with the Mandate and require only routine and minimal administrative paperwork, and they are not substantially burdened by the Govern ment’s subsequent efforts to deliver contraceptive coverage in their stead. f. No burden from ongoing requirements As a final argument, Plaintiffs deny th e act of opting out would free them from further involvement in the provision of contraceptive coverage. They argue the accommodation scheme would re quire their ongoing partic ipation, and give two examples to support this claim. First, Plaintiffs argue th ey would remain involved be cause the Departments are commandeering their group hea lth plans to provide contra ceptive coverage to their employees. They note their TP A or health insurance issuer can provide coverage only as long as plan participants and beneficiaries remain employed with the religious non-profit organization. Plaintiffs have not shown, assuming they opt out, how the provision of coverage to plan participants and beneficiaries through the health insurance issuer or TPA would substantially burden their re ligious exercise. Plainti ffs’ plan participants and beneficiaries are not guaranteed contraceptive coverage without cost sharing because they work for the Plaintiffs; they are guaranteed contraceptive c overage under the ACA. The ACA mandates health insu rance that includes contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). Plaintiffs’ th eory would not only relieve them of complying with the- 73 - Mandate, it would prevent hea lth insurance issuers and TPAs from stepping in under the ACA to provide plan participan ts and beneficiaries with the coverage they are entitled to receive under federal law. Second, Plaintiffs object that they must (a) notify their TPA or health insurance issuer when employees join or leave their broader health insurance scheme, and (b) complete the self-certification or notificati on to HHS when they create or terminate a relationship with a TPA or health insurance i ssuer. As to the first requirement, employers already must notify their TPA or health in surance issuer when they hire or fire employees. The communication with the TPA or health insurance issuer regarding general health insurance coverage for en tering or exiting plan participants and beneficiaries would occur regardless of a ny legal obligation un der the accommodation scheme. The latter requirement, however, is an obligation specific to the accommodation scheme. An insured or self-insured employe r using the Form must send it to “each” TPA or health insurance issuer as the employer fo rms contractual relationships with them. 26 C.F.R. § 54.9815-2713AT(b)(1 )(ii); 29 C.F.R. § 2590.715 -2713A(b)(1)(ii). If the employer instead uses the notification process, th e regulations state: “If there is a change in any of the information required to be in cluded in the notice, the organization must provide updated information to the Secretary of Health and Human Services.” 26 C.F.R. § 54.9815-2713AT(b)(1)(ii)(B); 29 C. F.R. § 2590.715-2 713A(b)(1)(ii)(B). Once again, this does not constitute a substantial burden. The only new requirement is that employers must complete the Form or notify HHS of their objection- 74 - when they contract with a new health insurance issuer or TPA. Plaintiffs do not argue the time, cost, or energy required to comply with th is requirement constitutes a substantial burden; they argue it is the moral significance of their involvemen t which burdens their religious exercise. 49 If the first self-certification is not a substantial burden, a second or third self-certification woul d not be substantially burde nsome given the extremely minimal administrative requirements of the Form or notification. As we have discussed above, de minimis administrative requirements do not themselves amount to substantial burdens on religious liberty. See Tony & Susan Alamo Found. , 471 U.S. at 305-06; see also Jimmy Swaggart Ministries , 493 U.S. at 394-95; Hernandez , 490 U.S. at 696-97. If the actual delivery of the Form or notificatio n is not a substantial burden, a contingent administrative requirement to update the Form or notification is not either. The regulations require the Plaintiffs to complete the Form or deliver the notification if they wish to opt out. But this ministerial act to opt out is not a substantial burden on religious exercise, nor are the co llateral requirements of the scheme. The Departments have allowed Plaintiffs to opt out of a neutral and generally applicable requirement imposed by federal law, and have done so in a manner that affirmatively distances those organizations from the provis ion of contraceptive coverage that other employers must provide. It is not a substan tial burden to require organizations to provide

49 The interim final rules estimate “the total annual burden for preparing and providing the information in the self-cer tification or notice to HHS will require approximately 50 minutes for each eligible or ganization with an equivalent cost burden of approximately $53.” 79 Fed. Reg. at 51,097.- 75 - minimal information for administrative purposes to take advantage of that accommodation.
C. Strict Scrutiny Because we determine Plaintiffs have fa iled to demonstrate a substantial burden on their religious exercise, we need not ad dress whether the Departments have shown a compelling state interest and adopted the least restrictiv e means of advancing that interest. 50
D. Conclusion In the absence of a substan tial burden, Plaintiffs have not demonstrated a strong likelihood of success on the merits of their RFRA claim, nor have they demonstrated they will suffer irreparable injury if an injunction is denied. Accordingly, a preliminary injunction on RFRA ground s is inappropriate.
VI. FIRST AMENDMENT Although the district courts focused almo st exclusively on RFRA, Plaintiffs also

50 We recognize third-party rights and inte rests are at stake in this litigation— namely, that plan participants and benefi ciaries are entitled by law to contraceptive coverage without cost sharing. When evaluating RFRA and Free Exercise claims, courts properly consider the impact of religious lib erty claims on pre-existing rights holders. Hobby Lobby , 134 S. Ct. at 2760 (emphasizing “[ t]he effect of the HHS-created accommodation on the women em ployed by Hobby Lobby and the other companies involved in these cases wo uld be precisely zero”); see Cutter v. Wilkinson , 544 U.S. 709, 720 (2005); Estate of Thornton v. Caldor, Inc. , 472 U.S. 703, 709-10 (1985); Yoder , 406 U.S. at 230; Sherbert , 374 U.S. at 409; Braunfeld , 366 U.S. at 604-05. Because we determine Plaintiffs have not demonstrated a substantial burden on their religious exercise, we do not reach the strict scrutiny an alysis where the rights and interests of third parties are properly weighed.- 76 - raised constitutional claims. They argue the accommodation scheme violates the Free Exercise and Establishment Clauses of th e First Amendment by exempting religious employers from the Mandate but requiring relig ious non-profit organizations to seek an accommodation. 51 Plaintiffs also argue the accommodation scheme simultaneously

51 In this discussion of First Amendment claims, “Plaintiffs” refers only to the plaintiffs in Little Sisters and Reaching Souls , and not Southern Nazarene . All of the plaintiffs raised First Amendment clai ms in their compla ints, but only the Little Sisters and Reaching Souls plaintiffs preserved these claims in their subsequent motions for a preliminary injunction and briefs on appeal. App. in LS at 57a-66a, 136a-38a; App. in RS at A65-74, A145-49. The district courts in Little Sisters and Reaching Souls did not reach the First Amendment claims. In Little Sisters , the court found the plaintiffs’ assertion of irreparable harm—which they were required to show to obtain a preliminary injunction, see Beltronics USA, Inc. v. Mi dwest Inventory Distrib., LLC , 562 F.3d 1067, 1070 (10th Cir. 2009)—was based only on RFRA. See Little Sisters , 6 F. Supp. 3d at 1245. In Reaching Souls , the court determined it did not need to reach First Amendment claims because it granted a preliminar y injunction on RFRA grounds. See Reaching Souls , 2013 WL 6804259, at *8 n.9. On appeal, we consider th e First Amendment claims in both cases. First, the Little Sisters plaintiffs made a sufficient argument befo re the district court. They expressly sought a preliminary injunctio n on First Amendment as well as RFRA grounds. App. in LS at 136a-138a. They did not elaborat e on their First Amendment claims in the irreparable harm analysis, but “[w]hen an a lleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Kikumura , 242 F.3d at 963 (quotations omitted ). Second, although we reverse the district court’s grant of a preliminary injunction on RFRA grounds in Reaching Souls , plaintiffs there raised the question whether that preliminary inj unction is appropriate on First Amendment grounds. “If the district court fails to analyze the factors n ecessary to justify a preliminary injunction, this court may do so if the record is sufficiently developed.” Westar Energy, Inc. v. Lake , 552 F.3d 1215, 1224 (10th Cir. 2009); see also Hobby Lobby , 723 F.3d at1145 (“The reco rd we have is the record the parties chose to create below—it is the record they deemed sufficient for the district court to decide the preliminary injunction que stion. For each element, we belie ve this record suffices for us to resolve each of the remain ing preliminary injunction fact ors.”). Because the First Amendment claims in both Little Sisters and Reaching Souls are legal questions that have Continued . . .- 77 - compels and silences their speech in violatio n of the Free Speech Clause of the First Amendment. We disagree and conclude th e accommodation scheme comports with the First Amendment. We note that the same sta ndard of review we identified for the RFRA claim applies to the Fi rst Amendment claims.
A. Free Exercise Clause Plaintiffs contend the ACA and its impl ementing regulations violate the Free Exercise Clause by exempting some religiou s objectors—churches and their “integrated auxiliaries”—from the Mandate, while requi ring others—specifically, religious nonprofit organizations—to comply with the Mandate, seek an accommodation, or pay substantial fines. They have not explaine d how their Free Exercise claim differs from their Establishment Clause cl aim, nor do they explain how they could prevail under the standard in Smith if they are unlikely to succeed und er RFRA. Because we conclude the

______________________________________ Cont. been fully briefed on appeal, we resolve those questions in this opinion rather than remanding them to the district cour ts and prolonging this litigation. By contrast, the Southern Nazarene plaintiffs included First Amendment claims in their complaint, but did not a ssert them in their motion fo r a preliminary injunction or accompanying memorandum of law. As a result, the district court di d not reach any First Amendment claims in its decision. See Southern Nazarene , 2013 WL 6804265. Moreover, the Southern Nazarene plaintiffs do not make First Amendment claims in their opening brief on appeal. Although we believe our First Amendment analysis applies to all group health plans and does not depend on wh ether they are insured, sel f-insured, or self-insured church plans, we note Little Sisters and Reaching Souls involve only sel f-insured church plans that are not subject to ERISA, and the insured and self-insured plans discussed in Southern Nazarene are not before us.- 78 - Mandate and accommodation scheme are neutral and generally applicable laws, they are subject only to rational basis review, which they survive.
1. Legal Background The First Amendment’s religion clauses state: “Congress shall make no law respecting an establishment of religion, or prohibiting the fr ee exercise thereof.” U.S. Const. amend. 1. To resolve challenges un der the Free Exercise Clause, we use a wellestablished framework. If a law is neutral a nd generally applicable, it does not violate the Free Exercise Clause “even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Ay e, Inc. v. City of Hialeah , 508 U.S. 520, 531 (1993); see Smith , 494 U.S. at 878-80. “A law is neutral so long as its object is something other than the in fringement or restriction of religious practices.” Grace United , 451 F.3d at 649-50. A law that is facially neutral may nevertheless fail the neutrality test if it covertly targets re ligious conduct for adverse treatment. Lukumi Babalu , 508 U.S. at 534. To determine whether a law is generally applicable, we ask if the “legislature decide[d] that the governmental interests it seeks to advanc e are worthy of being pursued only against conduct with a religious motivation.” Id. at 542-43. “[A] law that is both neutral and generally applicable need on ly be rationally related to a legitimate governmental interest to surv ive a constitutional challenge.” Grace United , 451 F.3d at 649.- 79 - 2. The Mandate and Accommodation Scheme are Neutral The Mandate and the accommodation scheme are neutral laws. See Priests for Life , 772 F.3d at 267-69; Mich. Catholic Conf. , 755 F.3d at 393-94. The Mandate is facially neutral with regard to employers, a nd neither the history nor the text of the ACA and its implementing regulations suggest the Ma ndate was targeted at a particular religion or religious practice. Plaintiffs cannot sh ow Congress or HHS “had as their object the suppression of religion.” Lukumi Babalu , 508 U.S. at 542. To the contrary, the Mandate arose from concerns about the personal and social costs of barriers preventing women from receiving preventive care, includi ng reproductive health care. See IOM, Clinical Preventive Services for Women: Closing the Gaps 102-03 (2011), available at www.nap.edu/catalog.php?record_id=131 81. The accommodation scheme was developed to facilitate the free exercise of re ligion, not to target religious groups or burden religious practice. To that end, th e Departments expanded the religious employer exemption and religious n on-profit organization accommodation to respond to the concerns of religious groups. The Plai ntiffs’ apparent dissatisfaction with the accommodation offered to them does not mean the Mandate or the accommodation scheme is non-neutral.
3. The Mandate and Accommodation Scheme are Generally Applicable The Mandate and the accommodation scheme are also generally applicable. See Priests for Life , 772 F.3d at 267-69; Mich. Catholic Conf. , 755 F.3d at 393-94. Plaintiffs cannot show Congress or the De partments sought to impose the Mandate only against- 80 - religious groups; to the contrary, the Mandat e applies to all employers with more than fifty employees using non-gr andfathered health plans. 52 “The exemptions do not render the law so under-inclusive as to belie the government’s interest in protecting public health and promoting women’s well-being or to suggest that disfavoring Catholic or other pro-life employers was its objective.” Priests for Life , 772 F.3d at 268. Plaintiffs fail to demonstrate the accommodation scheme targets re ligious conduct or was created with the objective of disfavoring particular faiths. Lukumi Babalu , 508 U.S. at 542-43. To the contrary, the Mandate was enacted as part of a larger program of health care reform, and both the exemption for religious employers and the accommodation for religious nonprofit organizations demonstrate federal defere nce to religious liberty concerns and were promulgated to facilitate rather than i nhibit the free exercise of religion.

52 Smith stated that “where the State ha s in place a system of individual exemptions, it may not refuse to extend that sy stem to cases of relig ious hardship without compelling reason.” Smith , 494 U.S. at 884 (quotations a nd citation omitted). But as we noted in Grace United , “we have already refused to interpret Smith as standing for the proposition that a secular ex emption automatically creates a claim for a religious exemption.” Grace United , 451 F.3d at 651. We have instead held: a system of individualized exempti ons is one that gives rise to the application of a subjective test. Such a system is one in which case-by-case inquiries are routinely made, such that there is an individualized governmental assessment of the reasons for the relevant co nduct that invites considerations of the particular circ umstances involved in the particular case. Axson-Flynn v. Johnson , 356 F.3d 1277, 1297 (10th Cir. 2004) (quotations and citations omitted). None of the categorical exemptio ns enacted by the ACA and its implementing regulations establish a system of individualized objections. And for the reasons detailed above, we believe the accommodation scheme effectively relieves objecting religious non-profit organizations of their obligations.- 81 - 4. The Mandate and Accommodation Scheme Have a Rational Basis Rather than make an argument based on the rational relationship standard, Plaintiffs instead contend our decision in Hobby Lobby precludes us from finding that public health and gender equality, withou t greater specificity, constitute compelling governmental interests. But, as we have ex plained, the compelling interest test does not apply; the rational basis test does. Grace United , 451 F.3d at 649. The Government observes that in the cases before us, the acco mmodation scheme rationally serves the twin interests of facilitating religious exercise and filling coverage gaps resulting from accommodating that religious exercise. On rational basis review, these interests ar e sufficient. Alleviating governmental interference with religious exercise, wh ich the accommodation scheme does, is a permissible legislative purpose. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos , 483 U.S. 327, 335 (1 987). And we need not scrutinize whether the Government ’s interest in public health and gender equality is more compelling in this case than in Hobby Lobby . We need only determ ine that public health and gender equality are legitimate state interests. We beli eve they meet this more permissive standard, which is not foreclosed by our compe lling interest analysis in Hobby Lobby

. See, e.g. , Hobby Lobby , 723 F.3d at 1143 (determini ng public health and gender equality are too broad to satisfy the compelli ng interest test but noting “[w]e recognize- 82 - the importance of these interests”). 53 The accommodation scheme advances both the free exercise of religion and the Government’s leg itimate interests in public health and gender equality. See Hobby Lobby , 134 S. Ct. at 2759 (“We therefore conclude that [the accommodation] system constitutes an alternativ e that achieves all of the Government’s aims while providing greater re spect for religious liberty.”). Furthermore, when applying the rational ba sis test, we are not limited to interests specifically articulated by the Departments. We may look to any conceivable legitimate governmental interest, and “the burden is upon the challenging party to negative any reasonably conceivable state of facts th at could provide a rational basis.” Bd. of Trs. of Univ. of Ala. v. Garrett , 531 U.S. 356, 367 (2001) (cita tions and internal quotations omitted). The more specific governmental in terest in health by ensuring access to contraception without cost sharing, whic h we did not specifically address in Hobby Lobby , would constitute a legitimate intere st conceivably a dvanced by the accommodation scheme. See Hobby Lobby , 723 F.3d at 1160 (Bacha rach, J., concurring) (“[T]he plurality does not mention the public in terest that the govern ment had relied on at

53 See also Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte , 481 U.S. 537, 549 (1987) (identifying “a compellin g interest in eliminating di scrimination against women”); Roberts v. U.S. Jaycees , 468 U.S. 609, 626 (1984) (“A ssuring women equal access to such goods, privileges, and advantages clea rly furthers compelling state interests.”); Prince v. Massachusetts , 321 U.S. 158, 165-6 7 (1944) (upholding child labor laws against a free exercise challenge on health and welfare grounds); Jacobson v. Massachusetts , 197 U.S. 11, 25 (1905) (upholding a mass vaccination program against a liberty challenge on hea lth and welfare grounds); see also Bob Jones Univ. v. United States , 461 U.S. 574, 604 (1983) (determining a co mpelling interest in eradicating racial discrimination “substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs”).- 83 - the preliminary-injunction hearing: the hea lth reasons for promoting employee access to emergency contraceptives.”). The Departments’ recognized interest in the uniformity and ease of administration of its programs would also meet this standard. See, e.g ., Bowen , 476 U.S. at 707; Hernandez , 490 U.S. at 682; United States v. Lee , 455 U.S. 252, 258-59 (1982). The Mandate and accommodation scheme ea sily pass the rational basis test. Because the Mandate is both ne utral and generally applicable and supported by a rational basis, Plaintiffs fail to make out a plau sible claim under the Free Exercise Clause.
B. Establishment Clause
Plaintiffs contend that ex empting churches and integr ated auxiliaries from the Mandate but requiring religious non-profit organizations to seek an accommodation violates the Establishment Clause. We disa gree. Because the Departments have chosen to distinguish between entities based on neutral, objective or ganizational criteria and not by denominational preference or religiosity, th e distinction does not run afoul of the Establishment Clause.
1. Organizational Distinctions We ll-Established in Federal Law Federal law distinguishes between different types of religious organizations, and as we discuss below, this differentiation is constitutionally permissible. Under the ACA and its implementing regulations, a religious employer “is organized and operates as a nonprofit entity and is referred to in sec tion 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended. ” 45 C.F.R. § 147.131(a). The regulations- 84 - at issue in this case draw on the tax code ’s distinction between houses of worship and religious non-profits, a “longstanding and fa miliar” distinction in federal law. Priests for Life , 772 F.3d at 238; see also Geneva Coll. , 778 F.3d at 443 (determining it was permissible for the Departments to base the exemption on the IRC’s provision “because that provision was a bright line that was already statutorily c odified and frequently applied”). Exempting churches while requiring other religious objectors to seek an accommodation is standard practice under the ta x code. The IRC a nd other regulations award benefits to some religious organiza tions—typically, houses of worship—based on articulable criteria that other relig ious organizations do not meet. See 26 U.S.C. § 6033(a)(3)(A)(i), (iii). Churches, their in tegrated auxiliaries, and conventions or associations of churches are automatically c onsidered tax exempt a nd need not notify the government they are applying for recognition, but other relig ious non-profit organizations must apply for tax-exempt status if their a nnual gross receipts ar e more than $5,000. See id. § 508(a), (c)(1)(A). Similarly, churches, th eir integrated auxiliaries, conventions or associations of churches, and the exclusivel y religious activities of any religious order need not file tax returns, but religious non-profit organizati ons with gross receipts above $5,000—even if they are tax-exempt—must file annually. Id. § 6033(a). Congress has placed special limitations on tax inquiries and examinations of churches, but not integrated auxiliaries, church-operated school s, or religious non- profit organizations. See id. § 7611.- 85 - Congress has used similar organizational di stinctions in the realm of religious accommodations. Churches and qualified church -controlled organizations that object to paying Social Security and Medicare taxes for religious reasons may opt out of paying them by filing a form with the IRS, but othe r religious non-profit or ganizations may not. See id. § 3121(w).
2. Organizational Distinctions and Respecting the Religion Clauses Distinctions based on organizational form enable the government to simultaneously respect both the Free Exerci se Clause and Establishment Clause and permit the construction of acco mmodation schemes that pass constitutional muster. The Supreme Court has concluded [t]he general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of thos e expressly proscribed governmental acts there is room for play in the join ts productive of a benevo lent neutrality which will permit religious exercise to exis t without sponsors hip and without interference. Walz v. Tax Comm’n of City of New York , 397 U.S. 664, 669 (1970); see also Catholic Charities of Diocese of Albany v. Serio , 859 N.E.2d 459, 469 (N.Y. 2006) (observing the Plaintiffs’ argument here “would call into question any limitations placed by the Legislature on the scope of any religious exemption—and thus would discourage the Legislature from creating any such exemptio ns at all,” and thus concluding “[a] legislative decision not to extend an accommodation to all kinds of religious organizations does not violate the Esta blishment Clause”). We recognize the- 86 - Government enjoys some discretion in fash ioning religious accom modations, and believe doing so on the basis of organizational form comports with the Establishment Clause.
3. Organizational Distinctions Compatible with Larson and Colorado Christian The Departments have offered the accomm odation to Plaintiffs based on their organizational form. Plaintiffs rely on the decisions in Larson v. Valente , 456 U.S. 228 (1982), and Colorado Christian University v. Weaver , 534 F.3d 1245 (10th Cir. 2008), to support their Establishment Clause claim. Bu t those cases do not hold that distinctions based on organizational type are impermissible.
Larson involved an Establishment Clause challenge to a Minnesota law that imposed registration and reporting requirements on religious organizations that received less than half of their contributions fro m members or affiliated organizations. Larson , 456 U.S. at 231. The legislature drew this distinction to discrimina te against particular religions, which was evident in the legislative history. Id. at 253-54 (“[T]he history of [the challenged law] demonstrates that th e provision was drafted with the explicit intention of including partic ular religious denominations and excluding others.”). Colorado Christian differentiated institutions based on intrusive inquir ies into their degree of religiosity. 534 F.3d 1259. In Colorado Christian , we concluded Colorado’s exclusion of “pervasively sectarian” instituti ons from state scholarship programs violated the First Amendment “for two reasons: the program expressly discriminates among religions without constitutional justificati on, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice.” Id. at 1250.- 87 - Neither of these two concerns in Colorado Christian is applicable here.
Larson and Colorado Christian prohibit preferences based on denomination (e.g., Catholic, Jewish, Islamic, etc.) and religios ity (e.g., pervasively sectarian, moderately sectarian, non-sectarian, et c.), but do not prohibit distinc tions based on organizational type (e.g., church, non-profit, university, etc.). As Larson noted: “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” 456 U.S. at 244. In Colorado Christian , we determined that “defendants supply no reason to think that the government may discriminate between ‘types of institution’ on the basis of the natu re of the religious pr actice these institutions are moved to engage in.” 534 F.3d at 1 259. As a result, Establishment Clause jurisprudence clearly indicates denominationa l preferences expressed by the government are subject to strict scrutiny. See id . Religiosity distinctions ar e subject to strict scrutiny as well because they involve the government in scrutinizing and making decisions based on particular expressions of religious belief. See id. at 1256 (invalidating Colorado law because it “expressly discriminates among religions, allowing aid to ‘sectarian’ but not ‘pervasively sectarian’ institutions, and it doe s so on the basis of criteria that entail intrusive governmental judgments regarding ma tters of religious belief and practice”). Plaintiffs cite no case holding that organi zational distinctions, as opposed to those based on denomination or religiosity, run af oul of the Establishment Clause. Unlike Awad v. Ziriax , 670 F.3d 1111, 1128-29 (10th Cir. 2012), which concerned a state constitutional amendment forbi dding courts from consideri ng or using Sharia law,- 88 - evidence of animus or favoritism aimed at a denomination or degree of religiosity is absent here. “Because the law’s distincti on does not favor a certain denomination and does not cause excessive entanglement betwee n government and religion, the framework does not violate the Establishment Clause.” Mich. Catholic Conf. , 755 F.3d at 395; see also Priests for Life , 772 F.3d at 272-74. Neither Larson nor Colorado Christian supports Plaintiffs’ claim that distinctions between churches and other religious entities is impermissible. As we concluded in Colorado Christian , “if the State wishes to choose among otherwise eligible institutions, it must employ neutral, objective criteria rather than criteria that involve the evaluation of contested religious questions and practices.” 534 F.3d at 1266. This is what the Departments have done with the accommoda tion scheme in compliance with the First Amendment’s Establishment Clause.
4. Plaintiffs’ Argument Based on the Departments’ Rationale Plaintiffs seize on the Departments’ rationa le for the distinction that religious nonprofit organizations are more likely than ch urches to employ individuals who do not share their employers’ beliefs but are nevert heless entitled to contraceptive coverage under the ACA. See 78 Fed. Reg. at 39,874 (“Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the sa me faith who share the same objection, and who would therefore be less likely than other pe ople to use contraceptiv e services even if such services were covered under their plan.” ). Plaintiffs argue some denominations are- 89 - less likely to carry out ministry functions th rough a church or inte grated auxiliary than others, and that the workforces of some no n-profit institutions may be more religiously homogenous than the work forces of some established churches. The Departments’ rationale may not be perfectly accurate, but it does not make the accommodation scheme unconstitutional. The cl ass of religious non- profit organizations encompasses a vast array of religiously affiliated universities, hospitals, service providers, and charities, some of them employ ing thousands of people. Of course, some religious non-profit organizations may be more likely than some churches to employ coreligionists, but the Departments may reasona bly recognize that, on the whole, churches are more likely to employ those who share their beliefs. Priests for Life , 772 F.3d at 272. The Departments originally exempted religious employers to “respect[] the unique relationship between a house of worship and it s employees in ministerial positions.” 76 Fed. Reg. at 46,623. We recognize that relationship between houses of worship and ministerial employees has been given specia l solicitude under the First Amendment. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC , 132 S. Ct. 694, 712-13 (2012). The Departments must avoid inquiries that involve them in “excessive entanglement” between religion and government, see Colorado Christian , 534 F.3d at 1261-62, and the general notion that houses of worship are more likely than religious non-profit organizations to employ people of the same faith avoids impermissible- 90 - scrutiny into the beliefs of relig ious entities and their employees. 54
* * * * Drawing a distinction between religiou s employers and religious non-profit organizations is a neutral and reasonable way for the Departments to pursue their legitimate goals in a constitutio nal manner. It gives special solicitude to churches to facilitate the liberties guaran teed by the Free Exercise Clause, and offers the accommodation scheme to relieve religious non-profit organizati ons of their obligation to provide contraceptive coverage under the Ma ndate without imposing a substantial burden on their religious exercise. The acco mmodation scheme does not violate the Establishment Clause.
C. Free Speech Clause Plaintiffs finally contend the accommodatio n scheme violates the Free Speech Clause of the First Amendment, which stat es that “Congress shall make no law . . . abridging the freedom of speech,” U.S. Cons t. amend. 1, by co mpelling them both to speak and remain silent, see Riley v. Nat’l Fed’n of the Blind of N.C., Inc. , 487 U.S. 781, 796-97 (1988). First, they argue that requiri ng them to sign and de liver the Form or the notification to HHS constitutes compelled speec h. Second, they ar gue that prohibiting

54 The original definition of “religious employer” required that the employer “primarily employs persons who share its relig ious tenets [and] primarily serves persons who share its religious tenets.” 76 Fed. Reg. at 46,623. In response to religious entities that argued these requirements might involve excessive entanglement with religion, the Departments eliminated three of the four criteria and based the definition solely on organizational form. 78 Fed. Reg. at 8459. Plaintiffs now contend that simplified definition makes unfounded assumptions about who religious employers employ.- 91 - them from influencing their TP As’ provision of contraceptiv e coverage compels them to be silent. Both arguments fail.
1. Compelled Speech The compelled speech claim fa ils. To the extent such a claim requires government interference with the plaintiff’s own message, see Johanns v. Livestock Mktg. Ass’n , 544 U.S. 550, 557 (2005) (stating a compelled speec h claim arises when “an individual is obliged personally to express a message he disagrees with, imposed by the government”), the regulations do not require an organization seeking an accommodation to engage in speech it finds objectionable or would not otherwise ex press. The only act the accommodation scheme requires is for religi ous non-profit organizations with group health plans to sign and deliver the Form or notification expressing their religious objection to providing contraceptive coverage . The Sixth Circuit reasoned: “Even assuming the government is compelling this speech, it is not speech that the appellants disagree with and so cannot be the basis of a First Amendment claim.” Mich. Catholic Conf. , 755 F.3d at 392; see also Geneva Coll. , 778 F.3d at 438-39 (“If anything, because the appellees specifically state on the self-certification form that they object on religious grounds to providing such coverage, it is a declaration that they will not be complicit in providing coverage.”). Plaintiffs cannot point to speech they are required to express and find objectionable. 55

55 In Axson-Flynn , we recognized that a compel led speech claim may apply to non-ideological speech. We held a Univers ity of Utah theater student had alleged a Continued . . .- 92 - Indeed, Plaintiffs have not shown any likelihood that their sending in the Form or the notification would convey a message of su pport for contraception. Plaintiffs do not demonstrate their TPA, their health insura nce issuer, or HHS—an y one of which would be the sole recipient of the Form or notifica tion—would view it as anything other than an objection to providing contraception. Rumsfeld v. Forum for Academic & Inst. Rights,
Inc. (“ FAIR ”), 547 U.S. 47 (2006), is instructive. In FAIR , a group of law schools challenged the Solomon Amendment, a federal statute that denied federal funding to universities that barred military recruiters from their campuses. At that time, the military did not permit gay, lesbian, and bisexual individuals to serve. The schools claimed a First Amendment compelled speech viola tion, arguing their compliance with the Solomon Amendment would signal their agreemen t with this policy. The Supreme Court rejected the argument, noting compliance did not signal agreement with the military’s positions, and the Solomon Am endment did not prevent th e schools from making their own position clear. FAIR , 547 U.S. at 65. This point is even stronger in the inst ant case, where Plaintiffs would send the Form or notification to convey their opposition to providing contraception, and the ACA and implementing regulations do not prev ent them from expressing that opposition widely. Plaintiffs remain free to express op position to contraception; “[n]othing in the[]

______________________________________ Cont. compelled speech violation beca use she was required to utter certain swear words as part of a script and objected to doing so on relig ious grounds. 356 F.3d at 1284 n.4.- 93 - final regulations prohibits an eligible or ganization from expressi ng its opposition to the use of contraceptives.” 78 Fed. Reg. at 39,880 n.41. With the passage of the interim final rule, Plaintiffs also have the option to send a letter or email to HHS expressly objecting to any provision of contraception. Th ey can fully explain th eir position in that notification. We are especially unconvinced that this option, freed from the text of the Form and permitting greater self-expression, forces Plaintiffs to engage in unwanted speech. Plaintiffs have not suggested the notification must be conveyed or communicated to any third parties or wi der audience aside from the Departments themselves. Even if Plaintiffs could identify spee ch they disagreed with—for example, identifying the name of their TPA or health insurance issuer—the argument that they are forced to send a message they do not wish to send is una vailing. The First Amendment does not—and cannot—protect organizations fro m having to make any and all statements “they wish to avoid.” The cas es cited by Plaintiffs are not about routine administrative burdens akin to complyin g with the accommodation sche me. These cases instead concern compelled ideological expre ssion such as salutes to the flag, W. Va. State Bd. of Educ. v. Barnette , 319 U.S. 624, 634 (1943); messages on license plates, Wooley v. Maynard , 430 U.S. 705, 715 (1977), Cressman v. Thompson , 719 F.3d 1139, 1152 (10th Cir. 2013); wearing school slogans, Frudden v. Pilling , 742 F.3d 1199, 1203-04 (9th Cir. 2014); and taking a political stance on commercial sex, Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc. , 133 S. Ct. 2321, 2331 (2013).- 94 - “Compelling an organization to send a form to a third pa rty to claim eligibility for an exemption ‘is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “L ive Free or Die,” and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.’” Priests for Life , 772 F.3d at 271 (quoting FAIR , 547 U.S. at 62). “That would be the equivalent of entitling a tax protester to refuse on Fi rst Amendment grounds to fill out a 1099 form and mail it to the Internal Revenue Service.” Wheaton College , 2015 WL 3988356, at *8. None of the cases cited by Plaintiffs involve compliance with the administrative requirements of a government program, and especially not a government program designed to exempt and distance an organization from activity it finds objectionable. We finally note that Plaintiffs’ signature and delivery of the Form or notification to HHS is “plainly incidental to the . . . re gulation of conduct” and thus is not protected speech. FAIR , 547 U.S. at 62. The act of signing and delivering the Form or notification to HHS is required to opt out of the Mandate. The Supreme Court has “rejected the view that ‘conduct can be labeled “speech” wh enever the person engaging in the conduct intends thereby to express an idea.’ In stead, we have extended First Amendment protection only to conduct that is inherently expressive.” Id. at 65-66 (quoting United
States v. O’Brien , 391 U.S. 367, 376 (1968)). The fact that Plaintiffs must complete the Form or notification to HHS to opt out of coverage does not render the act inherently expressive. See id. at 62. For the foregoing reasons, we reject Plaintiffs’ compelle d speech claim.- 95 - 2. Compelled Silence We further reject the claim that the accommodation scheme compels Plaintiffs’ silence. Like the Sixth and Seventh Circuits , we note Plaintiffs have made only general claims objecting to the non-interference regul ation and have failed to indicate how it precludes speech in which th ey wish to engage. Mich. Catholic Conf. , 755 F.3d at 392- 93; Univ. of Notre Dame v. Sebelius , 743 F.3d 547, 561 (7th Cir. 2014), vacated and remanded sub nom. , Univ. of Notre Dame v. Burwell , 135 S. Ct. 1528 (2015). After the issuance of the interim final rule repealing the non-interference regulation, we do not believe this question is before us. We agre e with the Government and the D.C. Circuit that the repeal of the non-interference rule re nders Plaintiffs’ claims regarding compelled silence moot. See Priests for Life , 772 F.3d at 242 n.8.
VII. CONCLUSION We have reviewed the district courts’ decisions to grant or deny a preliminary injunction to Plaintiffs in the three cases be fore us. Because we determine the ACA and its implementing regulations do not substantia lly burden Plaintiffs’ religious exercise or violate the Plaintiffs’ First Amendment rights, Plaintiffs have not established a likelihood of success on the merits or a likely threat of irreparable harm as required for a preliminary injunction. See Hobby Lobby , 723 F.3d at 1128. We therefore affirm the district court’ s denial of a preliminary injunction in Little
Sisters , 6 F. Supp. 3d 1225, and reverse the di strict courts’ grant of a preliminary- 96 - injunction in Southern Nazarene , 2013 WL 6804265, and Reaching Souls , 2013 WL 6804259.
EBSA FORM 700-- CERTIFICATION (revised August 2014) This form may be used to certify that the health coverage established or maintained or arranged by the organization listed below qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing, pursuant to 26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, and 45 CFR 147.131. Alternatively, an eligible organization may also provide notice to the Secretary of Health and Human Services. Please fill out this form completely. This fo rm should be made available for examination upon request and maintained on file for at least 6 years following the end of the last applicable plan year. Name of the objecting organization

Name and title of the individual who is authorized to make, and makes, this certification on behalf of the organization Mailing and email addresses and phone number for the individual listed above

I certify the organization is an eligible organization (as described in 26 CFR 54.9815-2713A(a), 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)) that has a religious objection to providing coverage for some or all of any contraceptive services th at would otherwise be required to be covered. Note: An organization that offers coverage through the same group health plan as a religious employer (as defined in 45 CFR 147.131(a)) and/or an eligible organization (as defined in 26 CFR 54.9815-2713A(a); 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)), and that is part of the same controlled group of corporations as, or under common control with, such employer and/or organization (within the meaning of section 52(a) or (b) of the Internal Revenue Code), is considered to meet the requirements of 26 CFR 54.9815-2713A(a)(3), 29 CFR 2590.715-2713A(a)(3), and 45 CFR 147.131(b)(3). I declare that I have made this certification, and that, to the best of my knowledge and belief, it is true and correct. I also declare that this certification is complete.

______________________________________ Signature of the individual listed above- 97 - ______________________________________ Date
The organization or its plan using this form must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement. Notice to Third Party Administrators of Self-Insured Health Plans In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.715- 2713(a)(1)(iv) constitutes notice to the third party administrator that the eligible organization: (1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and (2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A. As an alternative to using this form, an eligible organization may provide notice to the Secretary of Health and Human Services that the eligible organization has a religious objection to providing coverage for all or a subset of contraceptive services, pursuant to 26 CFR 54.9815- 2713A(b)(1)(ii)(B) and (c)(1)(ii), 29 CFR 2590.715-2713A(b)(1)(ii)(B) and (c)(1)(ii), and 45 CFR 147.131(c)(1)(ii). A model notice is available at: http://www.cms.gov/cciio/resources/Regulationsand-Guidance/index.html#Prevention

. This form or a notice to the Secretary is an instrument under which the plan is operated.

PRA Disclosure Statement According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 1210-0150. An organization that seeks to be recognized as an eligible organization that qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing may complete this self-certification form, or provide notice to the Secretary of Health and Human Services, in order to obtain or retain the benefit of the exemption from covering certain contraceptive services. The self-certification form or notice to the Secretary of Health and Human Services must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974, which generally requires records to be retained for six years. The time required- 98 - to complete this information collection is estimated to average 50 minutes per response, including the time to review instructions, gather the necessary data, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: U.S. Department of Labor, Employee Benefits Security Administration, Office of Policy and Researc h, 200 Constitution Avenue, N.W., Room N-5718, Washington, DC 20210 or email ebsa.opr@dol.gov and reference the OMB Control Number 1210- 0150.Little Sisters et al. v. Burwell , Nos. 13-1540, 14-6026, 14-6028 BALDOCK , Circuit Judge, dissenting in part. Today the Court holds, among other things , that the ACA contraceptive Mandate’s accommodation scheme does not s ubstantially burden religious non-profits that object to facilitating contraceptive or abortifacient c overage because opting out does not cause, authorize, or otherwise facilitate such coverage. 1 The Court’s opinion provides perhaps the most thorough explanation of the accomm odation scheme’s nuanced mechanics that I have yet read. And for argument’s sa ke, I follow its holding as to the insured plaintiffs’ and Little Sisters plaintiffs’ RFRA claims. 2 But I cannot join the Court’s holding as to the other self-insured plaintiffs’ RFRA claims, as th at holding contradicts the Court’s own reasoning and thorough explan ation of the accommodation scheme. In reality, the accommodation scheme forces the self-insured plaintiffs to perform an act that causes their beneficiaries to r eceive religiously object ed-to coverage. The fines the government uses to compel this actthus impose a substantial burden on the selfinsured plaintiffs’ religious exercise. More over, less restrictive me ans exist to achieve the government’s contraceptive coverage goals here. I must therefore dissent in part.

1 For consistency, I adopt the Court’s glossary.

2 As I explain below, the Little Sisters plaintiffs, though self-insured, have not shown that their opting out will necess arily cause their plan partic ipants and beneficiaries to receive contraceptive coverage. Accordingly, my use of the term “self-insured plaintiffs” does not refer to the Little Sisters unless otherwise stated.2 I. W HEN IS A B URDEN ON R ELIGIOUS E XERCISE “S UBSTANTIAL ?” The first step of a RFRA claim requires pl aintiffs to show (1 ) that the federal government has imposed a substantial burden on a (2) sincere (3) exercise of religion.
See 42 U.S.C. § 2000bb-1(a). The unique threshold ques tion we and so many other courts are currently grappling with, however, is how to determine whether a substantial burden exists where a law compels religious a dherents to perform an act they sincerely oppose when this oppo sition might be based on a faulty understanding of the law. See,

e.g. , E. Tex. Baptist Univ. v. Burwell , 2015 WL 3852811, at *3 (5th Cir. June 22, 2015). Several learned judges have argued compellingly that, under Burwell v. Hobby Lobby Stores, Inc. , 134 S. Ct. 2751 (2014), the amount of coercion the government uses to force a religious adherent to perform an act she sincerely believes is inconsistent with her understanding of her religi on’s requirements is the only consideration relevant to whether a burden is “substantial” under RFRA. See, e.g. , Priests For Life v. U.S. Dep’t of Health & Human Servs. , No. 13-5368, slip op. at 1 7–22 (D.C. Cir. May 20, 2015) (Brown, J., dissenting from the denial of rehearing en banc); id. at 35 (Kavanaugh, J., dissenting from the denial of rehearing en banc); Univ. of Notre Dame v. Burwell , 786 F.3d 606, 628 (7th Cir. 2 015) (Flaum, J., dissenting); Eternal Word Television Network, Inc. v. Sec’y, Dep’t of Health & Human Servs. , 756 F.3d 1339, 1340 (11th Cir. 2014) (Pryor, J. specially concurring); see also Hobby Lobby Stores, Inc. v. Sebelius , 723 F.3d 1114, 1137 (10th Cir. 2013) (“Ou r only task is to determine whether the claimant’s belief is sincere, and if so, whethe r the government has applied substantial pressure on the claimant to violate that belief.”); cf. E.E.O.C. v. Abercrombie & Fitch Stores, Inc. , 135 S.3 Ct. 2028, 2031–33 (2015) (analyzing a plainti ff’s exercise as a “rel igious practice” under Title VII where the act was motivated by “her unders tanding of her religion’s requirements”). These judges assert that whether religi ous objectors properl y understand the legal significance of the compelled act has no bear ing on the substantial burden analysis. E.g. Priests For Life. , No. 13-5368, slip op. at 35 (Kavanaugh, J., dissen ting) (“But what if the religious organizations are misguided in thin king that this scheme . . . makes them complicit in facilitating contracep tion or abortion? Th at is not our call to make under the first prong of RFRA.”). And Hobby Lobby supports this position well, as questioning a religious adherent’s unders tanding of the significance of a compelled action comes dangerously close to questioning “whether the re ligious belief asserted in a RFRA case is reasonable”—a “question that the federal courts have no business addressing.” Hobby Lobby , 134 S. Ct. at 2778. Under this understanding of RFRA, th e accommodation scheme substantially burdens any religious non-prof it that objects to performing an act that would cause or otherwise make it complicit in providing contraceptive co verage simply because the scheme uses substantial fines to compel an act that the non-profit sincerely believes would have that effect. The actual legal signif icance of the compelled act is irrelevant to the substantial burden analys is. And because the governm ent has conceded (2) the sincerity of (3) the religious ex ercise at issue, the only issue left to address is whether the government has shown that the accommodation scheme survives strict scrutiny. The judges who take this position, so far, all ag ree that the government has not made this4 showing. Priests For Life. , No. 13-5368, slip op. at 22 –25 (Brown, J., dissenting); id. at 46–51 (Kavan augh, J., dissenting); Notre Dame , 786 F.3d at 62 9–30 (Flaum, J., dissenting); Eternal Word Television Network , 756 F.3d at 1348–49 (Pryor, J. specially concurring). Notwithstanding the strength of those positions, I will pr oceed under the following assumptions to highlight an even deeper problem lurking within the self-insured accommodation scheme: First, I will assume that whether a burden on religious exercise is “substantial” turns not only on the amount of coercion the government us es to compel an act (no one disputes the substantiality of th e fines at issue here), but also on “how the law or policy being challenged actually operates and affects religious exercise.” Slip Op. at 39. Second, I will assume this Court ma y tell a religious adhere nt she does not face a substantial burden on her religio us exercise if her understandi ng of the law is flawed. Third, I will assume that any burden the accommodation sc heme imposes on Plaintiffs— who object to performing any act that would cause or otherwise make them complicit in providing various forms of contraceptive coverage—cannot be substantial unless they show, for example, how their compe lled act causes that coverage. See Slip Op. at 45–66. The Court tells Plaintiffs they cannot make this showing “because opting out would not trigger, incentivize, or otherwise cause the provision of contraceptive coverage.” Slip Op. at 65. If showing this causation is a prerequisite to establishing a substantial burden, the Co urt properly rejects the insured plaintiffs’ RFRA claim, as their action or inaction will not affect whether th eir plan beneficiaries receive objected-to coverage. But the self-insured plaintiffs’ inaction will prevent their plan beneficiaries5 from receiving the coverage. If their beneficiaries receive this coverage, it is only because the self-insured plaintiffs, by opting out, caused that effect . Thus, the selfinsured plaintiffs have shown how their opt ing out would cause th e provision and receipt of objected-to coverage and established a su bstantial burden on thei r religious exercise.
II. T HE C RITICAL D ISTINCTION I N T HIS C ASE I have nothing to add to the Court’s summ ary of the background in these cases, and very little to add to its explanation of the deta iled mechanics of the ACA accommodation scheme. But a criti cal distinction within scheme bears repeating. Under the ACA accommodation scheme, in the insured health plan context, “a health insurance issuer . . . would be obligated to provide contraceptive coverage under the ACA whether or not [the insured non-profit] delivered the Form or notification to HHS. ” Slip Op. at 48 n.28 (citing 42 U.S.C. § 300gg-13). But in the self-insured context, a TPA would be

“ authorized and obligated to prov ide the coverage . . . only if the religious non-profit . . . opts out.” Slip Op at 49 (emphases added); see also 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The Fifth, Sixth, and Seve nth Circuits failed to reco gnize this distinction. See E. Tex. Baptist , 2015 WL 3852811, at *5; Notre Dame , 789 F.3d at 614; Mich. Catholic Conference & Catholic Fam ily Servs. v. Burwell , 755 F.3d 372, 38 7 (6th Cir. 2014) cert. granted , judgment vacated 135 S. Ct. 1914 (2015). The Third and D.C. Circuits failed to appreciate its significance. See Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human
Servs. , 778 F.3d 422, 438 (3d Cir. 2015); Priests For Life v. U. S. Dep’t of Health &
Human Servs. , 772 F.3d 229, 254–56 (D.C. Cir. 2014). This Court considers the6 distinction “unremarkable.” Slip Op. at 49. I disagree. The distinction makes a difference, and juxtaposing the insured plainti ffs and self-insured pl aintiffs forces that difference into bold relief. A. The Insured Plaintiffs Assuming causation is key, I agr ee the accommodation scheme does not substantially burden the insured plaintiffs’ religious exerci se. As the Court explains, even total inaction on the part of an insure d non-profit still results in its plan participants and beneficiaries receiving the coverage to which they are entitled under the ACA because the government has independently oblig ated a third party (insurance issuers) to provide it. 3 See Slip Op. at 46–47. Op ting out in the insured c ontext does not cause the receipt of contraceptive coverage; rather, it merely absolves the eligible insured nonprofit of any responsibility for the contrace ptive coverage its plan participants and beneficiaries will receive whether it opts out or not . Thus, assuming Plaintiffs must show how opting out causes cove rage, the accommodation sche me does not substantially burden the insured plaintiffs’ exercise of religion. The insured accommodation is more akin to traditional conscientious objector sc hemes: the government can and will conscript the actors it needs to achieve its goal s whether objectors opt out or not. The same cannot be said of the se lf-insured plaintiffs, however.

3 Even the government’s proffered fourth option—declining to sponsor a group health plan—would not interfere with contraceptive c overage for the insured plaintiffs’ plan beneficiaries. Without an employer-sponsor ed plan, these beneficiaries would have to find other health insurance. See Nat’l Fed’n of Indep. Bus. v. Sebelius , 132 S. Ct. 2566, 2664 (2012) (Scalia, J., dissenting). And that insurance would likely cover contraceptives. See 42 U.S.C. § 300gg-13.7 B. The Self-Insured Plaintiffs Unlike the insured plaintiffs, the ACA leaves the self-insured plaintiffs in a position where, by refusing to opt out, they can prevent their plan beneficiaries from receiving the objected-to coverage the benefi ciaries are entitled to and would otherwise receive under the ACA. In other words, thei r plan participants a nd beneficiaries will receive the coverage only if they opt out as th e government commands. This makes their opting out a but-for caus e of the receipt of the coverage. The Court views this ability to prevent contraceptive covera ge by inaction as nothing more than the ability to disobey the law. See Slip Op. at 54–55 & n.35. But that is the same limited ability the plaintiffs in Hobby Lobby possessed, and it goes to the heart of the substantial bu rden the self-insured plaintiffs face here. “In Hobby Lobby , the plaintiff[s] . . . could choose only between (1) complying w ith the ACA by providing the coverage or (2) not complyin g and paying significant pena lties.” Slip Op. at 3 (citing Hobby Lobby , 134 S. Ct. at 2759–60). Similarly, these self-insured plaintiffs must choose between (1) complying with the ACA by taking an action that ultimately causes their beneficiaries to receive this coverage or (2) not complying and paying significant penalties. This is a Hobson’s choice, whic h we have long held imposes a substantial burden under RFRA. See Abdulhaseeb v. Calbone , 600 F.3d 1301, 1 315 (10th Cir. 2010) (“We conclude that a religious exercise is substantially burden ed under [RFRA] 42 U.S.C. § 2000cc–1(a) when a government . . . presents the plaintiff with a Hobson’s choice—an illusory choice where the only realistically possibl e course of action trenches on an adherent’s sincerely held religious belief.”); Hobby Lobby , 723 F.3d at 1141 (10th8 Cir. 2013) (explaining that the choice between compromising religious beliefs and paying fines under the ACA “is precisely the so rt of Hobson’s c hoice described in Abdulhaseeb ”). 1. The Obvious Causal Connection If causation is key to show ing a substantial burden, see Slip Op. at 32–33, 45–66, the self-insured plaintiffs have surely show n that burden. Certainly, a shifting legal responsibility alone may not necessarily create a causal relationship. But here, the selfinsured plaintiffs’ opt out causes the coverage because (1) the government cannot force plaintiffs themselves to provide the coverage, Hobby Lobby , 134 S. Ct. at 2785, and (2) the government cannot shift the ability (let alone the responsibility) to provide the coverage to non-objectors unless the self-insured plaintiffs opt out. See 29 C.F.R. § 2590.715-2713A(b)(2); Slip Op. at 48–49. Opting out is thus the only way their plan participants and beneficiarie s may receive the coverage. Put another way, if the self-insured plai ntiffs do not opt out , who will provide the coverage for their plan participants and be neficiaries? The answer: no one. The selfinsured plaintiffs cannot do so per their faith; the TPAs cannot do so per the law. Thus, the self-insured accommodation renders any duty to provide, and any entitlement to receive, contraceptive coverage wholly unenforceable and th us illusory—unless and until the self-insured plaintiffs opt out. Cf. Pennington v. Northrop Grumman Space & Mission Sys. Corp. , 269 F. App’x 812, 819 (10th Ci r. 2008) (unpublishe d) (“[W]hen a promise, in reality, promises nothing—it is illusory.” (Internal marks and citation omitted)).9 To fully understand why no one can or will provide th is objected-to coverage unless the self-insured plaintiffs perform a compelled act, one must view the ACA Mandate and accommodation scheme in light of Hobby Lobby

. Hobby Lobby clearly holds forcing religious employers to provide objected-to contraceptive coverage violates RFRA. 134 S. Ct. at 2785. So , if any entity is to provide th e coverage, it must be a third party. The insured accommodation independently conscrip ts third parties to provide the coverage. But as this Court points out, the self-insured accommodation was drafted such that no third party can provid e the coverage in the self-i nsured context unless and until the objecting religious employer opt s out. Slip Op. at 48–49; see also Eternal Word Television Network , 756 F.3d at 1347 (Pry or, J., specially concurring) (explaining that, without the Form or letter, a TP A “has no legal authority to step into the shoes of the [non-profit] and provide contr aceptive coverage to the employe es and beneficiaries of the [non-profit]”). As such, a third party’s legal authority ( i.e. permission) to provide the coverage is wholly dependent upon ( i.e. caused by) the self-insured non-profit opting out. The Court believes we shou ld focus on the fact that the ACA “entitle[s] plan participants and beneficiaries to coverage whether or not the plaintiffs opt out” and imposes a duty on “either the religious non-profit organizati on or the TPA” to provide that coverage. Slip Op. at 33, 57. But this reasoning (1) fails to consider the ACA Mandate in light of the limitations Hobby Lobby already imposed, and (2) confuses legal concepts (duty and entitlement) with real-wor ld effects (provision and receipt). First, the Court’s focus on the ACA’s requ irement that “either the religious nonprofit organization or the TPA” pr ovide the coverage, Slip Op. at 57, ignores the fact that10 the government cannot require the religious non-profit to provide the coverage under Hobby Lobby . By ignoring the limitation Hobby Lobby imposes on the government, the Court simultaneously acknowledges that “op ting out is necessarily a but-for cause of someone else—the TPA—providing contrace ptive coverage,” Slip Op. at 56, and nevertheless rejects the self-insured plaintiffs ’ RFRA claims for lack of causation. Slip Op. at 64–65. But again, Hobby Lobby forbids the government from placing this requirement on the non-profits th emselves. So if opting out is necessarily a but-for cause of someone else providing the coverage, it is necessarily a but-for cause of anyone providing the coverage at all . Essentially, the Court conc edes but-for cause and then turns around and denies the exis tence of any causation. What? Second, the Court asserts that the self-ins ured plaintiffs’ opt out will not cause the actual provision and receipt of objected-to coverage because the ACA creates an independent, albeit illus ory, duty and entitlement related to that coverage. True, opting out does not cause entitlement to contraceptive coverage—the ACA entitles all health plan beneficiaries to cont raceptive coverage. But these beneficiaries will not receive that coverage unless the self-insured plaintiffs do something to cause its provision from a third party. In other words, the AC A may independently say “someone” has a duty to provide contraceptive coverage, see 29 C.F.R. § 2590.715–2713, but no one can or will honor that duty and provide the coverage unless the self-ins ured plaintiffs opt out. No self-insured plaintiff will honor it because the government cannot force them to under Hobby Lobby , and no third party can honor it becaus e no third party has authority to do so without an opt out. Based on this error, the Court conclude s that “federal law, not the11 actions of the religious objector, ensures that plan participants and beneficiaries will
receive contraceptive coverage.” Slip Op. at 52 (emphasis added). Bu t that is simply wrong. As explained above, fede ral law alone does not ensure receipt of the coverage from the self-insured plaintiffs; and it does not even allow, let alone ensure, receipt of that coverage from a third party unless the self-i nsured plaintiffs opt out. Rather, federal law, only in conjunction with the self-insured plaintiffs’ opt out , allows plan participants and beneficiaries to receive contraceptive coverage. 4 These errors, taken together, cause the Cour t to reject a straw man rather than the self-insured plaintiffs’ RFRA claims. The se lf-insured plaintiffs do not claim a RFRA violation based on the fact that the AC A created an entitlement to contraceptive coverage; they object to the causal role th ey must play in providing that coverage. 5

4 Even with the opt-out, federal law does not always ensure receipt of the coverage. For example, the Court asserts “the ACA ensure s plan participants and beneficiaries will receive contraceptive coverage” but simultaneousl y contradicts itself by acknowledging that TPAs for self-insured church plans may in fact decline to provide that coverage, in which case “plan participants an d beneficiaries would not get the coverage to which they are otherwise entitled.” Slip Op. at 61 & n.41 (emphases added). The Court’s attempt to paint these contra dictory positions as consistent suffers from the same logical flaw highlighted above; that is , it confuses the actual provision and receipt of coverage with a concededly unenforceable entitlement and duty to provide it. If the law cannot force an un willing TPA to provide contrace ptive coverage, the TPA will not provide it, and the plan bene ficiaries will not receive it. Cf. Mach Mining, LLC v. E.E.O.C. , 135 S. Ct. 1645, 1652–53 (2015) (acknowledging th at even the government may violate the law, “especially so when [it faces] no consequence”). Thus, the existence of an unenforceable duty to pr ovide contraceptive coverage does not ensure receipt, as this Court seems to believe.

5 The Court also asserts that religious non-profits “cannot preclude the government from requiring others to provide the legally required coverage in its stead,” Slip Op. at 51–52, and “cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which th ey are entitled under th e ACA,” Slip Op. at12 A proper accommodation may relieve otherw ise substantial burdens on religious exercise, but this accommodation fa ils to do so, at least in th e self-insured context. And to be sure, “[a] burden does not rise to the le vel of being substantial when it places an inconsequential or de minimis bu rden on an adherent’s religious exercise.” Slip Op. at 41 (quoting Priests for Life , 772 F.3d at 246). But here, the accommodation scheme foists upon the self-insured plaintiffs a choice with dire consequences . Either (1) they refuse to act, which would avoid causing their plan bene ficiaries to receive objected-to coverage but trigger crippling fines fo r violating the law or (2) th ey act, which would cause the receipt of this coverage and violate th eir faith. If “the purpose of religious accommodation” was to permit religious object ors “to avoid a religious burden and to comply with the law,” see Slip Op. at 55, it fails to ac hieve that purpose. Rather, the accommodation foists upon the se lf-insured plaintiffs a Hobson’s choice and thus a substantial burden on their exercise of religion. Abdulhaseeb , 600 F.3d at 1315. 2. This is Not a Conscientious Ob jector Accommodation Scheme The Court believes this accomm odation scheme akin to th e conscientious objector schemes used for military conscription. See Slip Op. at 52 n. 33. Not so. The

71. I agree that this should not be the case but, unfortunatel y, the government drafted the self-insured accommodation such that the self-insured plaintiffs can , by inaction, do exactly that. As explained ab ove, that is precisely why th eir opting out causes the receipt of objected-to coverage. Moreover, to the extent th is language connotes dissatis faction with the problems created by the self-insured accommodation, such dissatisfaction is ir relevant to whether the law imposes a substantial burden under RFRA . Our job is not to “add words to the law to produce what is thought to be a desirable result.” Abercrombie & Fitch , 135 S. Ct. at 2033.13 accommodation scheme may function like a conscientious objector scheme in some regards, but it ultimately forc es objectors to play a very different and causal role. Military conscription law generally requires male citizens to register for the draft and allows the President to draft a certain number of men from that pool of candidates into active duty in the Armed Forces. 6 See, e.g. , Arver v. United States , 245 U.S. 366, 375–76 (1918) (allowing the Pr esident to draft up to two groups of 500,000 men). After registering, conscientious objectors can opt out of serving in combat. 50 App. U.S.C. § 456(j). But they cannot reduce the number of men the President ultimately drafts. Whether objectors lawfully regist er and opt out, or register and then choose unlawfully to avoid induction, or even choo se unlawfully not to register at all, the Pr esident can and will draft the same number of men needed for war. See L AWRENCE M. B ASKIR &
W ILLIAM A. S TRAUSS , C HANCE AND C IRCUMSTANCE : T HE D RAFT , T HE W AR , AND T HE V IETNAM G ENERATION 14–28 (1978) (explaining that the government’s Vietnam draft policies “did not care who was drafted as long as enough people were drafted”). Indeed, the Court’s reliance on Sheridan v. United States , 483 F.2d 169 (8th Cir. 1973), highlights this difference. In Sheridan , the defendant registered for the draft but did not lawfully opt out. Instead, he simply re fused to be inducted. Id. at 170. But the result under conscription law was the same: “another person [was] called in his place.” Id. at 174. In other words, like the insured plaintiffs, no matter what conscientious objectors do or refuse to do, the government can and will achieve its military draft goals.

6 Currently, “every male citizen of the Unite d States . . . between the ages of eighteen and twenty-six” must register in order to facilitate any ev entual conscription into the Armed Forces. 50 App. U.S.C. § 453(a).14 The opposite result occurs under the se lf-insured accommodation scheme. If a self-insured plaintiff simply refuses to provid e coverage and does not opt out, the government cannot call a third party in its place. The accommodatio n scheme thus places the self-insured plaintiffs in a very different position vis- à-vis helping the government achieve its religiously objectionable goals. Conscientious objectors cannot prevent the government from conscripting their replacemen ts; but the self-insured plaintiffs can completely prevent the government from even authorizing their TPAs to provide objected-to coverage. Conscienti ous objectors also need not id entify a related third party to serve in their stead; but the self-insured plaintiffs must identify a related third party through a form or letter. And this form or letter is the only means by which the government can authorize that third party to serve in their stead. Under conscientious objector schemes, the government may indepe ndently draft non-objecting Americans into combat to further its war effort s; conscientious objectors have no power to stop it. But under the self-insured accommodation scheme the government needs the self-insured plaintiffs to commit an act to further its contraceptive coverage efforts; their beneficiaries will not receive this coverage unless they commi t that act and cause that result. Such a conscientious objector scheme—w here the government could draft a replacement soldier only if the initial conscientious objector opted out and identified a previously ineligible relative to serve in his st ead—would be immensely prob lematic, to say the least. 7

7 The Court attempts to coun ter this point by referencin g the Enrollment Act of 1863, which “permitted a draftee to avoid service only by either providing a substitute or paying $300.” Slip Op. at 52 n.33 (quoting Act of March 3, 1863, ch. 75, § 13, 12 Stat. 731, 733 (1863)). But this act was a short-liv ed experiment that di d not even survive to15 In relying on conscientious objector sc hemes the Court commits the same error it levies against this dissent: it fails to appr eciate the broader structures of both the accommodation and conscientious objector scheme s. In comparing th e two schemes, the Court focuses only on the acts the objector must perform to opt out, and what happens if the objector performs those acts. The comp arison totally ignores the broader and more critical difference between the two schemes: what happens if the objector refuses to perform those acts? Conscription law requires that “someone” go to war, and in the end
“someone” will go to war. The law is such that the gov ernment can and will shift this legal duty to a non-objector regardless of th e objector’s action or in action. Conversely, the ACA says “someone” must provide cont raceptive coverage, but the self-insured accommodation was drafted such that if the se lf-insured plaintiffs choose to do nothing rather than opt out, no one will actually provi de that coverage. Again, the government cannot force the plaintiffs to provide the coverage, and it ca nnot shift the duty to provide the coverage unless the self-insured plaintiffs choose to opt out. If the government could independently shift this duty (a s conscription law allows) or eliminate the need to shift the duty at all (as the insu red accommodation does) that mi ght eliminate the causal role

the end of that war. More over, resentment over the Enrollment Act and its opt-out provision triggered the “New York City draft riot, the la rgest [and deadliest] civil insurrection in American history apar t from the South’s rebellion itself.” E RIC F ONER , R ECONSTRUCTION : A MERICA ’ S U NFINISHED R EVOLUTION 1863–1877 at 32 (1988). “No case questioning the Civil War draft was h eard by the Supreme Court, but it is known that Chief Justice Roger Taney prepared a rough outline of an opinion declaring the act unconstitutional.” Leon Friedman, Conscription and the Constitution , 67 M ICH

. L. R EV

. 1493, 1546 (1969). Indeed, on e eminent historian called the substitution provision a “grotesque monstrosit[y]” and stated “[t]he government could hardly have devised a worse law.” B RUCE C ATTON , T HE C IVIL W AR 208 (1987). I would call that problematic.16 the self-insured plaintiffs currently face. But presently, the law fo rces the self-insured plaintiffs into gatekeeping pos itions and then uses fines to force them to open the gates. 3. The Supreme Court’s Little Sisters and Wheaton College Orders The Court also believes the accommodation sc heme does not impose a substantial burden on self-insured non-pr ofits because the government ’s new alternative notice accommodation—which forces an objecting non-profit to write a letter to HHS opting out and identifying its TPAs and/or health insu rance issuers—is esse ntially akin to the Supreme Court’s injunctions pending appeal in Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius , 134 S. Ct. 1022 (2014), Wheaton College v. Burwell , 134 S. Ct. 2806 (2014 ), and most recently Zubik v. Burwell , Nos. 14A1065, 14- 1418, 2015 WL 3947586, at *1 (U.S. June 29, 2015). See Slip Op. at 42 n.25, 59 n.39. But the Court’s reliance on th ese interim orders appears to be based on two flawed assumptions: (1) that th e notices required by these orders were sufficient to authorize a TPA to provide coverage it could not provide before, and (2) even assuming this dubious interpretation of the orders, that they approved of compelling religious non-profits to play this causal role under RFRA’s first step (no substantial bur den) as opposed to approving of such compulsion only wh ere it satisfies RFRA’s second step (strict scrutiny). As to the first assumption, the Little Sisters order nowhere contemplates allowing the government to use the Little Sisters’ in terim written notice to facilitate coverage by alternative means. And the Wheaton College order did not allow the government to rely on Wheaton’s interim written noti ce, either. Rather, it allowe d the government to rely on preexisting knowledge that Wheaton qualified for exemption and would not provide17 certain contraceptive coverage. See Wheaton Coll. , 134 S. Ct. at 2807 (“But [Wheaton] has already notified the Government —without using EBSA Form 700—that it meets the requirements for exemption from the contr aceptive coverage requirement on religious grounds. Nothing in this order precl udes the Government from relying on this notice , to the extent it considers it necessary, to fac ilitate the provision of full contraceptive coverage under the Act.” (emphases added)). Moreover, as Justice Sotomayor’s dissent
in Wheaton College shows, the written notices required in Wheaton College , Little
Sisters , and Zubik were insufficient to authorize TP A coverage under the then-effective accommodation, and may remain insuffici ent even under th e new alternative accommodation. See Wheaton Coll. , 134 S. Ct. at 2814 n.6 (S otomayor, J., dissenting). 8
To the extent Wheaton College allows the government to rely on its knowledge of Wheaton’s objection, this merely tr acks the Supreme Court’s decision in Bowen v. Roy , where the Court rejected a Free Exer cise challenge to the government’s use of a social security number it already possessed and concluded that the First Amendment does not “require the government to conduct its own inte rnal affairs in ways that comport with the religious beliefs of particular citizens.” 47 6 U.S. at 693, 699 (1986). But importantly:

8 That is, even under the new alternative notice scheme, the “information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a),” see Zubik , 2015 WL 3947586, at *1, does not contai n all the information required by the regulations and thus might not qualify as a va lid opt out sufficient to trigger TPA coverage, see 29 C.F.R. § 2590.715-2713A(b)(1)(ii )(B) (requiring the self-insured organization to provide, among other things “the plan name and type . . . an d the name and contact information for any of the plan’s third party administrators”); Wheaton Coll. , 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting).18 a majority of justices [in Roy ] indicated that the requ irement that applicants furnish a social security number was a different matter. Five justices either concluded or strongly suggested that the government could not require an applicant to provide the number on a be nefits application if the applicant had a sincere religious objection to doing so. Univ. of Notre Dame v. Sebelius , 743 F.3d 547, 567 (7th Cir. 2014) (Flaum, J., dissenting) (emphasis in original), cert. granted , judgment vacated su b nom. Univ. of Notre Dame v. Burwell , 135 S. Ct. 1528 (2015); see Roy , 476 U.S. at 714–16 (Blackmun, J., concurring in part), 732 (O’C onnor, J., concurring in part and dissenting in part) (“The rise of the welfare state was not the fall of the Free Exercise Clause.”), 733 (White, J., dissenting). Moreover, the Court may well have expr essly allowed for this reliance in Wheaton College because, unlike the Little Si sters, Wheaton provides insu rance through both selfinsured plans and insured plans subject to the Mandate. See Wheaton Coll. v. Burwell , 50 F. Supp. 3d 939, 944 (N.D. I ll. 2014) (Wheaton “offers its health insurance pursuant to six plans: two insured HMO plans, a [g randfathered] PPO plan, two self-funded prescription drug plans, and an insured stud ent health plan.” (footnote omitted)). Thus, unlike the wholly self-insured Little Sisters, the government might independently ensure that an issuer from at least one of these in sured health plans provides full contraceptive coverage to at least some of Wheaton’s various plan benefi ciaries under the current ACA regime without forcing Wheaton to play a caus al role in the receipt of that coverage. Thus, the Little Sisters , Wheaton College , and Zubikorders allow religious nonprofits to simply notify the government th at they qualify for exemption and will not provide contraceptive coverage . The government may us e its knowledge of these19 objections when choosing between independently available alternativ e means to ensure coverage is provided (as the conscientious objector and insured schemes do). But these orders do not allow the govern ment to compel religious non-profits to furnish the document that is essential to cause their plan beneficiaries to receive objected-to
coverage. And yet, suppose these orders could be read to say th at the written notices they required were legally sufficient to authori ze a previously inelig ible TPA to provide objected-to coverage. Under that dubious inte rpretation, the orders would indeed force self-insured religious objectors to perform an act that causes the ultimate provision of the coverage, as they would make the provision of the coverage wholly contingent upon the religious objectors’ acts of providing HHS with that notice. For all the reasons discussed above, that interpretation of the orders would impose a s ubstantial burden on the selfinsured plaintiffs’ exercise of religion. So, turning to the Court’s second assumptio n, even under its dubious interpretation of the orders, the orders nowhere say that forci ng religious non-profits to play this sort of causal role avoids imposing a substantial bur den on their religious exercise. Instead, assuming the Court’s interpretation of these or ders is correct, these orders would impose a substantial burden under RFRA’s first step and therefore must comply with RFRA’s second step (strict scrutiny). Indeed, Ju dge Kavanaugh has comp ellingly argued that these orders simply set forth a less rest rictive means of achieving the government’s compelling interest in facilitating access to contraceptive coverage. See Priests For Life , No. 13-5368, slip op. at 46–51 (Kavanaugh, J., dissenting ). These orders do not require20 religious non-profits to identif y related third parties for the government to authorize and possibly conscript in their stead . Rather, they only require the non-profits to inform HHS that they qualify for exemptio n and will not provide objected- to coverage. As discussed above regarding conscientious objector scheme s, a significant difference exists between asking a religious objector to say simply “no” and compelling that objector to identify a related entity to serve as a sc apegoat where no one else can. 9
4. ERISA-Bound Plans v. ERIS A-Exempt Church Plans The burden the self-insured pl aintiffs face is most salient with regards to Southern Nazarene, whose TPA is subject to ERISA enforcement and theref ore will be not only authorized but also required to provide contraceptives to the participants and beneficiaries of Southern N azarene’s self-insured plan only if Southern Nazarene opts

out. See 29 C.F.R. § 2590.715-2713 A(b)(2). Southern Nazar ene’s opt out will thus clearly cause someone to provide contraceptiv e coverage where no one would or could before. But the lack of an enforcem ent mechanism as to ERISA- exempt church plans does not itself remove the causal role and substa ntial burden that the accommodation scheme foists upon the church-plan plaintiffs. For example, the Guidestone Plan is an ERISAexempt church plan, but at least one of its TPAs, Highmark, has indicated it will provide full contraceptive coverage for those self-insur ed organizations that use the Guidestone Plan and validly opt out. And plaintiffs Reaching Souls, Truett-McConnell College, and

9 Moreover, this less restrictive means of achieving the same goal necessarily dooms the current self-insured accommodation scheme under strict scrutiny. See infra Part III.21 Mid-America Christian University are all self-i nsured plaintiffs that use the Guidestone Plan. Slip Op. at 21; SN Supp. Br. II at 9 n. 2. So even though their opting out might not trigger an enforceable duty to provide objected-to coverage , these church plan plaintiffs have established that their opting out will actually cause High mark to provide the coverage—coverage it cannot pr ovide unless they opt out. True, given the repeal of the accommodatio n scheme’s non-interference provision, church plans like the Guidestone Plan might try to fire TPAs like Highmark and replace them with TPAs that promise not to provide coverage for ob jected-to contraceptives, and those plaintiffs that use the Gu idestone Plan might be able to fire Guidestone if it refuses to do so. See RS Oral at 12:57–13:10. Thus, by economic coercion, these plaintiffs might be able to ultimat ely stop the provision of the covera ge they were initially forced to cause. But, the government ma intains that “such conduct is generally unlawful and is prohibited under . . . state and federal laws.” See 79 Fed. Reg. at 51, 095. And none of this changes the present fact th at if plaintiffs who use the Guidestone Plan opt out, they will cause Highmark to perform a religiously objected-to act on their behalf where Highmark previously could not do so. Thus, those self-insured plaintiffs that use the Guidestone Plan have shown “presently threat ened injuries” warranti ng injunctive relief. Connecticut v. Massachusetts , 282 U.S. 660, 674 (1931). The Little Sisters plaintiffs, on the other hand, ha ve not established this causal connection. The Little Sisters’ primary TPA, Brothers Services, is not bound by ERISA and has promised not to provide contraceptive coverage even if Little Sisters opts out. Little Sisters asserts that Brothers Trust al so uses other TPAs who might choose to22 provide contraceptive coverage if they opt out, but they ha ve not sufficiently developed this theory to bear the burde n of establishing that their opting out will presently cause someone to provide contraceptive coverage to their plan beneficiaries. The Court also suggests sel f-insured non-profits “could relieve themselves of any lingering doubts they may ha ve about causation by [1] employing an insured plan, [2] employing a self-insured church plan where th e Departments lack auth ority to enforce the Mandate against their TPA, or [3] administer ing the self-insured plan on their own inhouse without using a TPA.” S lip Op. at 52 n.32. But none of these options alleviate the substantial burden the accommodation scheme im poses. First, choosing to switch from a self-insured plan, where no co verage can be provided withou t an opt out, to an insured plan, where coverage will be pr ovided by a third party, woul d simply mean choosing to cause that coverage by switc hing plans rather than opting out. Second, as discussed above, even in the ch urch plan context, opting out ma y still cause a TPA to provide the coverage. Third, no plaintiff in this case admi nisters its plan in-house. So to the extent the Court opines on the legal effect the ACA Mandate might ha ve on a plan not at issue in this case, the Court impermissibly exceed s its jurisdiction by “a dvising what the law would be upon a hypothetical state of facts

. ” Lewis v. Cont’l Bank Corp. , 494 U.S. 472, 477 (1990) (quoting North Carolina v. Rice , 404 U.S. 244, 246 (1971)). Given that we do not have ju risdiction to pass on this hypothetical, the self-insured plaintiffs should not have to rebut it to prove a present substantial burden under RFRA. But, because the Court goes th ere, administering a self-ins ured plan in-house without a TPA can be prohibitively complex, limit op tions for managing care, and create legal23 pitfalls that many non-profits si mply cannot afford to handle. See Thomas R. McLean & Edward P. Richards, Health Care’s “Thirt y Years War”: The Orig ins and Dissolution of Managed Care , 60 N.Y.U. A NN

. S URV

. A M

. L. 283, 313 (2004); see generally Rhonda D. Orin and Daniel J. Healy, Self-Administering, Insuri ng and Funding Benefit Plans , 197– 213 in H UMAN R ESOURCES (Thompson 2007 Summer Edition). C. Summing Up the Substan tial Burden On the Self-Insured Plaintiffs The Court concludes that the Plaintiffs’ causation arguments fail because “opting out would not trigger, incentivize, or othe rwise cause the provision of contraceptive coverage.” Slip Op. at 65–66. This conclusion is correct in the insured context. But the self-insured plaintiffs, with the exception of Little Sisters, have shown exactly how their act of opting out will cause someone to provide contraceptive co verage where their refusal to act would prevent that result. Unfortunately, the Co urt fails to see this obvious causal relationship because it ignores the clear holding of Hobby Lobby and fails to comprehend the difference be tween unenforceable entitlement and actual receipt. The government has left self-insured plaintiffs in a position where they must decide whether their beneficiaries will actually receive objected-to contraceptive coverage. The accommodation does not absolve these plaintiffs of this responsibility. Instead, it forces them to either (1) violate th eir sincere religious beliefs by performing an action that will cause their beneficiaries to receive objected-t o coverage, or (2) violate the law and incur steep fines to obey those religious beliefs. Ag ain, this is a Hobson’s choice and thus a substantial burden on their religious exercise under RFRA. Abdulhaseeb , 600 F.3d at 1317; Hobby Lobby , 723 F.3d at 1141.24 III. S TRICT S CRUTINY Because the government has imposed a su bstantial burden on at least the selfinsured plaintiffs’ religious ex ercise, under RFRA it must demonstrate that this burden is “(1) is in furtherance of a co mpelling governmental interest; a nd (2) is the least restrictive means of furthering that compelling governmen tal interest.” 42 U.S.C. § 2000bb-1. Our precedent currently hold s the government has no compelli ng interest in contraceptive
coverage. See Hobby Lobby , 723 F.3d at 1143. But even assuming such a compelling interest, see Hobby Lobby , 134 S. Ct. at 2780 (assuming the same), 2785–86 (Kennedy, J., concurring), 2799 (Ginsburg, J., dissenting), the government cannot show this scheme is the least restrictive means of furthering that interest. As discussed above, the Supreme Court’s interim orders in Little Sisters , Wheaton College , and Zubik , even when interpreted so as to force se lf-insured non-profits to play a necessary causal role in contraceptive coverage, provide a less restrictive means of achieving the same goal. See Priests For Life , No. 13-5368, slip op. at 46–51 (Kavanaugh, J., di ssenting). The existence of this less restrictive means dooms the current accommodation scheme under strict scrutiny. Hobby Lobby , 134 S. Ct. at 2781–82. IV. C ONCLUSION “Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty,” Hobby Lobby , 134 S. Ct. at 2760, a liberty essential to our country’s constitutional tradition, albeit with boundaries difficult to define, see id. at 2785 (Kennedy, J., concurring). The Court today makes causation one of those boundaries. Even assuming this boundary, ho wever, the self-insured plaintiffs in this case, with the25 exception of the Little Sisters plaintiffs, have clearly show n how their compelled act will cause their plan beneficiaries to receive objected-to coverage that they could not otherwise receive. Therefore, I dissent fro m the Court’s holding re garding these selfinsured plaintiffs. Even assuming a causatio n requirement, I would still hold these selfinsured plaintiffs have shown a substantial li kelihood of success on the merits of their RFRA claim and that the other requirements for a preliminary injunction are met. I would therefore affirm the di strict court’s denial of a preliminary injunction in Little
Sisters , 6 F. Supp. 3d 1225, affirm the district court’s grant of a preliminary injunction in Reaching Souls , 2013 WL 6804259, and a ffirm in part (as to the self-insured plaintiffs: Southern Nazarene University and Mid-America University) and reverse in part (as to the insured plaintiffs: Oklahoma Baptist Univers ity and Oklahoma Wesley an University) the district court’s grant of a preliminary injunction in Southern Nazarene , 2013 WL 6804265.