Cyril Korte v. HHS , 735 F.3d 654 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3841
CYRIL B. KORTE , JANE E. KORTE ,
and KORTE & LUITJOHAN
CONTRACTORS, INC .,
Plaintiffs-Appellants,
v.
KATHLEEN SEBELIUS, Secretary of
Health & Human Services, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:12-CV-01072-M JR — M ichael J. Reagan, Judge.
2 Nos. 12-3841 & 13-1077
No. 13-1077
WILLIAM D. GROTE , III;
WILLIAM DOMINIC GROTE , IV; WALTER F.
GROTE , JR.; MICHAEL R. GROTE ;
W. FREDERICK GROTE , III; JOHN R. GROTE ;
GROTE INDUSTRIES, LLC; and
GROTE INDUSTRIES, INC .,
Plaintiffs-Appellants,
v.
KATHLEEN SEBELIUS, Secretary of
Health & Human Services, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 4:12-cv-00134-SEB-DM L — Sarah Evans Barker, Judge.
ARGUED MAY 22, 2013 — DECIDED NOVEMBER 8, 2013
Before FLAUM , ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. These consolidated appeals challenge
the federal government’s “contraception mandate,” a regula-
tory requirement imposed by the Department of Health and
Human Services (“HHS”) to implement the terms of the 2010
Nos. 12-3841 & 13-1077 3
Patient Protection and Affordable Care Act. The mandate
requires employers to provide coverage for contraception and
sterilization procedures in their employee health-care plans on
a no-cost-sharing basis. Noncompliance carries heavy financial
penalties and the risk of enforcement actions.
The plaintiffs are two Catholic families and their closely
held corporations—one a construction company in Illinois and
the other a manufacturing firm in Indiana. The businesses are
secular and for profit, but they operate in conformity with the
faith commitments of the families that own and manage them.
The plaintiffs object for religious reasons to providing the
mandated coverage. They sued for an exemption on constitu-
tional and statutory grounds.
Center stage at this juncture is the Religious Freedom
Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq.,
which prohibits the federal government from placing substan-
tial burdens on “a person’s exercise of religion,” id.
§ 2000bb-1(a), unless it can demonstrate that applying the
burden is the “least restrictive means of furthering … [a]
compelling governmental interest,” id. § 2000bb-1(b). Focusing
primarily on their RFRA claims, the plaintiffs in each case
moved for a preliminary injunction. The district judges denied
relief, holding that the claims were not likely to succeed. We
provisionally disagreed and enjoined enforcement of the
mandate pending appeal.
The appeals have now been briefed and argued and are
ready for decision. Plenary review has confirmed our earlier
judgment. These cases—two among many currently pending
in courts around the country—raise important questions about
4 Nos. 12-3841 & 13-1077
whether business owners and their closely held corporations
may assert a religious objection to the contraception mandate
and whether forcing them to provide this coverage substan-
tially burdens their religious-exercise rights. We hold that the
plaintiffs—the business owners and their companies—may
challenge the mandate. We further hold that compelling them
to cover these services substantially burdens their religious-
exercise rights. Under RFRA the government must justify the
burden under the standard of strict scrutiny. So far it has not
done so, and we doubt that it can. Because the RFRA claims are
very likely to succeed and the balance of harms favors protect-
ing the religious-liberty rights of the plaintiffs, we reverse and
remand with instructions to enter preliminary injunctions
barring enforcement of the mandate against them.
I. Background
A. The Contraception Mandate
On March 23, 2010, Congress adopted the Affordable Care
Act, a sweeping legislative and regulatory overhaul of the
nation’s health-care system. The Act “aims to increase the
number of Americans covered by health insurance and
decrease the cost of health care.” Nat’l Fed’n of Indep. Bus. v.
Sebelius (“NFIB”), 132 S. Ct. 2566, 2580 (2012). One feature of
the Act is a requirement that employee health-care plans
governed by ERISA1 provide certain minimum levels of
coverage to plan participants and beneficiaries. See 29 U.S.C.
1
The Employment Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq.
Nos. 12-3841 & 13-1077 5
§ 1185d (applying the requirements of part A of Title XXVII of
the Public Health Services Act as amended by the Affordable
Care Act to ERISA-governed group health plans). More
specifically, the Affordable Care Act establishes a general
requirement that employer-sponsored group health-care plans
cover “preventive care and screenings” for women on a
no-cost-sharing basis; Congress instructed HHS to fill in the
details:
A group health plan and a health insurance
issuer offering group or individual health insur-
ance coverage shall, at a minimum provide
coverage for and shall not impose any cost
sharing requirements for—
…
(4) with respect to women, such addi-
tional preventive care and screenings not
described in paragraph (1) as provided
for in comprehensive guidelines sup-
ported by the Health Resources and Ser-
vices Administration [“HRSA,” an agency
within HHS] for purposes of this para-
graph.
42 U.S.C. § 300gg-13(a); see also 29 U.S.C. § 1185d.
Before promulgating regulations pursuant to this statutory
directive, the HRSA sought advice from the Institute of
Medicine at the National Academy of Science about what
services to include in the preventive-care mandate. Based on
the Institute’s recommendations, the HRSA issued
6 Nos. 12-3841 & 13-1077
comprehensive guidelines requiring coverage of (among other
things) “[a]ll Food and Drug Administration [“FDA”] ap-
proved contraceptive methods, sterilization procedures, and
patient education and counseling for all women with reproduc-
tive capacity.” Health Res. & Servs. Admin., Women’s Preven-
tive Services Guidelines: Affordable Care Act Expands Prevention
Coverage for Women’s Health and Well-Being, http://www.hrsa.
gov/womensguidelines/ (last visited Nov. 7, 2013). These
include oral contraceptives (“the pill”), barrier methods,
implants and injections, emergency oral contraceptives
(“Plan B” and “Ella”), and intrauterine devices.2 On
February 15, 2012, HHS published final regulations incorporat-
ing the HRSA guidelines. See Group Health Plans and Health
Insurance Issuers Relating to Coverage of Preventive Services,
77 Fed. Reg. 8725 (Feb. 15, 2012). The agency made the
mandate effective in the first plan year on or after August 1,
2012.3 See 45 C.F.R. § 147.130(b)(1).
2
See FDA, B IR TH C O N TRO L : M ED IC IN ES TO H ELP Y O U , http://www.fda.gov/
ForConsumers/ByAudience/ForWomen/FreePublications/ucm313215.htm
(last visited Nov. 7, 2013).
3
In July the Treasury Department announced a one-year delay in the
implementation of the so-called employer mandate. See M ark J. M azur,
Continuing to Implement the ACA in a Careful, Thoughtful Manner, T REA SU RY
N O TES (July 2, 2013), http://www.treasury.gov/connect/blog/pages/
continuing-to-implement-the-aca-in-a-careful-thoughtful-manner-.aspx. The
announcement did not mention the contraception mandate, which was
already in effect. We assume that the postponement of the employer
mandate has no effect on the contraception mandate; the government has
not advised otherwise.
Nos. 12-3841 & 13-1077 7
Noncompliance with the contraception mandate is pun-
ished by steep financial penalties and other civil remedies. For
example, failure to provide the mandated coverage brings a tax
penalty of $100 per day per employee—$36,500 per year per
employee. See 26 U.S.C. § 4980D(a), (b)(1). If an employer
discontinues offering a health plan altogether, the penalty is
$2,000 per year per employee. See id. § 4980H(a), (c). In addi-
tion, noncomplying employers face potential enforcement
actions by the Secretary of Labor and plan participants and
beneficiaries under ERISA. See 29 U.S.C. §§ 1132, 1185d.
Like many of the other employer mandates in the Afford-
able Care Act, the contraception mandate applies to employers
with 50 or more full-time employees. See 26 U.S.C. § 4980H.
Smaller employers—those with fewer than 50 full-time
employees—are not required to provide a health plan for their
employees and apparently are not subject to the coverage
minimums, including the contraception mandate. See id. We
say “apparently” because it’s not entirely clear that the man-
date is categorically inapplicable to small employers; the
government takes the position that if a small employer not
otherwise required to provide an employee health-care plan
nonetheless chooses to do so, the regulatory scheme requires
inclusion of the mandated contraception coverage.
Health plans in existence when the Act was adopted are
“grandfathered” and do not need to comply with the coverage
minimums—including the contraception mandate—unless the
plan sponsor makes certain changes to the terms of the plan.
See 42 U.S.C. § 18011. Grandfathering is a transitional measure;
this category will shrink as employer-based plans existing
8 Nos. 12-3841 & 13-1077
prior to March 23, 2010, undergo changes. The government
estimates that the number of plans in grandfathered status will
dwindle fairly rapidly as older health-care plans are updated
and renewed. See Interim Final Rules for Group Health Plans
and Health Insurance Coverage Relating to Status as a
Grandfathered Health Plan, 75 Fed. Reg. 34,538, 34,552
(June 17, 2010).
Finally, some religious employers are exempt from the
contraception mandate, see 45 C.F.R. § 147.130(a)(1)(iv)(A), but
“religious employer” was initially defined quite narrowly:
[A] “religious employer” [for purposes of an
exemption from the contraception mandate] is an
organization that meets all of the following
criteria:
(1) The inculcation of religious values is
the purpose of the organization.
(2) The organization primarily employs
persons who share the religious tenets of
the organization.
(3) The organization serves primarily
persons who share the religious tenets of
the organization.
(4) The organization is a nonprofit organi-
zation as described in section 6033(a)(1)
and section 6033(a)(3)(A)(i) or (iii) of the
Internal Revenue Code of 1986, as amend-
ed [covering the tax status of churches
and their integrated auxiliaries,
Nos. 12-3841 & 13-1077 9
conventions or associations of churches,
and the exclusively religious activities of
religious orders].
Id. § 147.130(a)(1)(iv)(B).
B. The Religious-Employer Controversy
The contraception mandate was instantly controversial.4
The religious-employer exemption did not leave room for
conscientious religious objectors other than houses of worship,
their integrated affiliate organizations, and religious orders
acting as such. In other words, the definition of “religious
employer” was so circumscribed that it left out religious
colleges and universities; religious hospitals and clinics; reli-
gious charities and social-service organizations; other faith-
based nonprofits; and for-profit, closely held businesses
managed in accordance with a religious mission or creed.
HHS responded to the outcry from these left-out employers
by establishing a temporary “safe harbor” for certain nonprofit
religious organizations not covered by the exemption. See
Group Health Plans and Health Insurance Issuers Relating to
Coverage of Preventive Services, 77 Fed. Reg. at 8728. Eventu-
ally the agency proposed a revised definition of “religious
employer” and an “accommodation” of a broader class of
4
The mandate prompted a proliferation of lawsuits by employers seeking
exemptions on religious-liberty grounds. By one count more than 70 suits
challenging the mandate are currently pending. See The Becket Fund for
Religious Liberty, HHS Mandate Information Central, T H E B EC KET F UN D .O RG ,
http://www.becketfund.org/hhsinformationcentral.
10 Nos. 12-3841 & 13-1077
nonprofit religious organizations with objections to the
mandated coverage. The new rules were proposed in final
form on February 6, 2013, see Coverage of Certain Preventive
Services, 78 Fed. Reg. 8456, published in final form on July 2,
2013, see 78 Fed. Reg. 39,870, and became effective August 1,
2013, see id.As revised, the exemption drops the first three require-
ments of the earlier definition of “religious employer,” but the
change is not intended to alter the exemption’s scope. “Reli-
gious employer” is now defined as “an organization that is
organized and operates as a nonprofit entity and is referred to
in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code
of 1986, as amended.” 45 C.F.R. § 147.131(a). The cross-
reference is the tax exemption for churches and their integrated
auxiliaries, conventions or associations of churches, and the
exclusively religious activities of religious orders. See 26 U.S.C.
§ 6033(a)(3)(A)(i), (iii). HHS has explained that “the simplified
and clarified definition of religious employer does not expand
the universe of religious employers that qualify for the
exemption beyond that which was intended in the 2012 final
regulations.” Coverage of Certain Preventive Services, 78 Fed.
Reg. at 39,874. In other words, the exemption remains limited
to “[h]ouses of worship and their integrated auxiliaries.” Id.
Under the revised rule, certain nonprofit religiously
affiliated employers may receive an “accommoda-
tion”—essentially, an attempted workaround whereby the
objecting employer gives notice to its insurance carrier and the
insurer issues a separate policy with the mandated coverage.
Nos. 12-3841 & 13-1077 11
The accommodation is limited to organizations that meet the
following requirements:
(1) The organization opposes providing coverage
for some or all of any contraceptive services
required to be covered under § 147.130(a)(1)(iv)
on account of religious objections.
(2) The organization operates as a nonprofit
entity.
(3) The organization holds itself out as a religious
organization.
(4) The organization self-certifies, in a form and
manner specified by the Secretary, that it satisfies
the criteria in paragraphs (b)(1) through (3) of
this section … .
45 C.F.R. § 147.131(b). Notably for our purposes, neither the
final religious-employer exemption nor the accommodation
applies to for-profit employers with conscientious religious
objections to providing the mandated coverage.
C. The Plaintiffs
1. The Kortes and K & L Contractors
Cyril and Jane Korte own and operate Korte & Luitjohan
Contractors, Inc. (“K & L Contractors”), a construction com-
pany located in Highland, Illinois. K & L Contractors has
approximately 90 full-time employees, 70 of whom belong to
a union that sponsors their health-insurance plan. The com-
pany provides a health-care plan for the remaining 20 or so
12 Nos. 12-3841 & 13-1077
nonunion employees. Together, Cyril and Jane own about 87%
of the stock of the corporation and are its only directors. Cyril
is the president and Jane is the secretary of the company. As
officers and directors, they set all company policy.
The Kortes are Catholic and follow the teachings of the
Catholic Church regarding the sanctity of human life from
conception to natural death and the moral wrongfulness of
abortion, sterilization, and the use of abortifacient drugs and
artificial means of contraception. They seek to manage their
company in accordance with their faith commitments. In
August 2012 when the contraception mandate was finalized,
the Kortes discovered that their then-existing health plan
covered sterilization and contraception—coverage that they
did not realize they were carrying. Because providing this
coverage conflicts with their religious convictions, they began
to investigate alternative health-care plans with the intention
of terminating their existing plan and substituting one that
conforms to the requirements of their faith.
The contraception mandate stood in their way. The com-
pany’s existing health-care plan was set to renew on January 1,
2013, triggering the requirements of the mandate and the large
financial penalties and possible enforcement actions if they did
not comply. As the Kortes understand their religious obliga-
tions, providing the mandated coverage would facilitate a
grave moral wrong. On the other hand, following the teachings
of their faith and refusing to comply would financially devas-
tate K & L Contractors and the Kortes as its owners; at $100 per
day per employee, the monetary penalties would total $730,000
per year.
Nos. 12-3841 & 13-1077 13
The Kortes responded to the conflict between their legal
and religious duties in two ways. First, they promulgated
ethical guidelines for K & L Contractors memorializing the
faith-informed moral limitations on the company’s provision
of health-care benefits, including its inability to provide
insurance coverage for abortion, abortifacient drugs, artificial
contraception, and sterilization.5 Second, the Kortes and K & L
5
The company’s ethical guidelines are as follows:
1. As adherents of the Catholic faith, we hold to the
teachings of the Catholic Church regarding the sanctity of
human life from conception to natural death. We believe
that actions intended to terminate an innocent human life
by abortion, including abortion-inducing drugs, are
gravely sinful. We also adhere to the Catholic Church’s
teaching regarding the immorality of artificial means of
contraception and sterilization.
2. As equal shareholders who together own a control-
ling interest in Korte & Luitjohan Contractors, Inc., we
wish to conduct the business … in a manner that does not
violate our religious faith and values.
3. Accordingly, we and Korte & Luitjohan Contractors,
Inc. cannot arrange for, pay for, provide, facilitate, or
otherwise support employee health plan coverage for
contraceptives, sterilization, abortion, abortion-inducing
drugs, or related education and counseling, except in the
limited circum stances where a physician certifies that
certain sterilization procedures or drugs commonly used
as contraceptives are being prescribed with the intent to
treat certain medical conditions, not with the intent to
prevent or terminate pregnancy, without violating our
religious beliefs.
14 Nos. 12-3841 & 13-1077
Contractors filed suit in the Southern District of Illinois for a
religious exemption from the mandate.
2. The Grotes and Grote Industries
The Grote Family owns and manages Grote Industries, Inc.,
a manufacturer of vehicle safety systems headquartered in
Madison, Indiana.6 Like the Kortes, the members of the Grote
Family are Catholic and they manage Grote Industries in
accordance with their religious commitments, including
Catholic moral teaching regarding the sanctity of human life
and the wrongfulness of abortion, abortifacient drugs, artificial
contraception, and sterilization.
Grote Industries has 1,148 full-time employees at various
locations, including 464 in the United States. The company
provides a health-care plan that is self-insured and renews
annually on the first of every year. Consistent with the Grote
Family’s Catholic faith, prior to January 1, 2013, the employee
health-care plan did not cover contraception and sterilization
6
The Grote Family includes individual plaintiffs William D. Grote, III;
William Dominic Grote, IV; Walter F. Grote, Jr.; M ichael R. Grote;
W. Frederick Grote, III; and John R. Grote. Together with other family
members not named as plaintiffs, they fully own Grote Industries, Inc.,
which in turn is the managing mem ber of Grote Industries, LLC, the
manufacturing firm. For ease of reference, we refer to the two companies
as “Grote Industries.” William D. Grote, III is Chairman and CEO; William
Dominic Grote, IV is President and Chief Operating Officer; Walter F.
Grote, Jr. is a board member; M ichael R. Grote is the A ssistant Treasurer;
W. Frederick Grote, III is the Secretary; and John R. Grote is the A ssistant
Secretary.
Nos. 12-3841 & 13-1077 15
procedures. Starting on that date, however, the requirements
of the contraception mandate kicked in.
Like the Kortes and K & L Contractors, the Grote Family
and Grote Industries object on religious grounds to providing
coverage for contraception, abortion-inducing drugs, and
sterilization procedures. But with its large full-time workforce,
the company faced an annual penalty of almost $17 million if
it did not comply with the mandate. The Grotes and Grote
Industries filed suit in the Southern District of Indiana for a
religious exemption from the mandate.
D. The Litigation
Both complaints name the Secretaries of HHS, Labor, and
the Treasury as defendants and seek declaratory and injunctive
relief against the contraception mandate. Both sets of plaintiffs
allege that the mandate violates their rights under RFRA; the
Free Exercise Clause, the Establishment Clause, and the Free
Speech Clause of the First Amendment; and the Administrative
Procedure Act. The Grote complaint adds a due-process claim.
In both cases the plaintiffs moved for a preliminary injunction
the day after filing suit, focusing primarily though not exclu-
sively on their RFRA claims.
In Korte the district court in Southern Illinois denied the
motion, concluding that the Kortes and K & L Contractors had
not demonstrated a likelihood of success on the merits.
Regarding the RFRA claim in particular, the judge held that
although the Kortes and K & L Contractors are “persons”
within the meaning of RFRA and may invoke the statute’s
16 Nos. 12-3841 & 13-1077
protection, the contraception mandate does not substantially
burden their religious-exercise rights. This is so, the judge held,
because the link between the mandated coverage and the acts
condemned by the Kortes’ religion is too attenuated. In other
words, the burden on religious exercise is insubstantial because
the compelled provision of contraception coverage is too far
removed from the independent decisions by plan participants
and beneficiaries to use contraception. The court also found the
free-exercise claim unlikely to succeed.
In Grote the district court in Southern Indiana likewise
denied the motion, also concluding that the plaintiffs were not
likely to succeed on their RFRA claim. Unlike her colleague in
Southern Illinois, however, the Indiana judge doubted that a
secular, for-profit corporation like Grote Industries has
religious-exercise rights under RFRA. The judge did not decide
the question, however, concluding instead that any burden on
the Grotes or Grote Industries is insignificant because too many
independent decisions separate the provision of the mandated
coverage and the practices deemed immoral by the Catholic
Church. The court also found the constitutional and Adminis-
trative Procedure Act claims unlikely to succeed.
The case from Southern Illinois reached us first, just before
the January 1, 2013 deadline for compliance with the mandate.
The plaintiffs sought an injunction pending appeal. In a brief
order and based on our early review of the merits, we provi-
sionally held that the RFRA claim is likely to succeed and the
balance of harms weighs in favor of the religious-liberty rights
of the plaintiffs. See Korte v. Sebelius, No. 12-3841, 2012 WL
6757353, *4–5 (7th Cir. Dec. 28, 2012). We enjoined enforcement
Nos. 12-3841 & 13-1077 17
of the mandate pending appeal. Id. at *5. Our colleague
dissented. Id. at *5–6 (Rovner, J., dissenting).
On the strength of our provisional decision in Korte, the
Grotes and Grote Industries returned to the district court in
Southern Indiana and asked for reconsideration. The judge
acknowledged the similarity between the two cases but
declined to reconsider because our order in Korte had no
precedential effect. The plaintiffs appealed and asked for an
injunction pending appeal. Tracing our analysis in Korte, we
granted the request and enjoined enforcement of the mandate
pending appeal. Grote v. Sebelius, 708 F.3d 850, 853–55 (7th Cir.
2013). Again, our colleague disagreed, filing a thoughtful
dissent explaining her contrary position. Id. at 855–67
(Rovner, J., dissenting).
The appeals proceeded to full briefing, and we heard
argument at the end of May. Since then, four circuits have
reached decision in similar cases. The Tenth Circuit held that
two closely held, for-profit businesses and their owners are
likely to succeed on a claim for an exemption from the
mandate under RFRA. Hobby Lobby Stores, Inc. v. Sebelius,
723 F.3d 1114 (10th Cir. 2013). The Sixth and Third Circuits
disagree. Autocam Corp. v. Sebelius, 730 F.3d 618 (6th Cir. 2013);
Conestoga Wood Specialties Corp. v. Sec’y of the U.S. Dep’t of
Health & Human Servs., 724 F.3d 377 (3d Cir. 2013). The D.C.
Circuit recently held that the owners of two closely held, for-
profit businesses are likely to succeed on a RFRA challenge to
the mandate, although their companies are not. Gilardi v. U.S.
Dep’t of Health & Human Servs., No. 13-5069, 2013 WL 5854246(D.C. Cir. Nov. 1, 2013).
18 Nos. 12-3841 & 13-1077
II. Analysis
These cases come to us on appeals from orders denying
preliminary injunctive relief. See 28 U.S.C. § 1291. To win a
preliminary injunction, the moving party must demonstrate
that (1) it has no adequate remedy at law and will suffer
irreparable harm if a preliminary injunction is denied; and
(2) there is some likelihood of success on the merits of the
claim. See Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir.
2011). If the moving party meets this threshold burden, the
court weighs the competing harms to the parties if an injunc-
tion is granted or denied and also considers the public interest.
See Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State
Dep’t of Health, 699 F.3d 962, 972 (7th Cir. 2012); Ezell, 651 F.3d
at 694. This equitable balancing proceeds on a sliding-scale
analysis; the greater the likelihood of success on the merits, the
less heavily the balance of harms must tip in the moving
party’s favor. See Planned Parenthood, 699 F.3d at 972. The aim
is to minimize the costs of a wrong decision. See Stuller, Inc. v.
Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir. 2012). Our
review proceeds on a split standard of review: We review legal
conclusions de novo, findings of fact for clear error, and
equitable balancing for abuse of discretion. Ezell, 651 F.3d at
694.
Here, the analysis begins and ends with the likelihood of
success on the merits of the RFRA claim. On the strength of
that claim alone, preliminary injunctive relief is warranted;
there is no need to remand for the district courts to weigh the
injunction equities. Although the claim is statutory, RFRA
protects First Amendment free-exercise rights, and “in First
Nos. 12-3841 & 13-1077 19
Amendment cases, ‘the likelihood of success on the merits will
often be the determinative factor.’ ” ACLU of Ill. v. Alvarez,
679 F.3d 583, 589 (7th Cir. 2012) (quoting Joelner v. Village of
Washington Park, Ill., 378 F.3d 613, 620 (7th Cir. 2004)). “This is
because the ‘loss of First Amendment freedoms … unquestion-
ably constitutes irreparable injury … .’ ” Id. (quoting Elrod v.
Burns, 427 U.S. 347, 373 (1976) (plurality opinion)). Moreover,
once the moving party establishes a likelihood of success on
the merits, the balance of harms “normally favors granting
preliminary injunctive relief” because “ ‘injunctions protecting
First Amendment freedoms are always in the public interest.’ ”
Id. at 590 (quoting Christian Legal Soc’y v. Walker, 453 F.3d 853,
859 (7th Cir. 2006)). The government hasn’t addressed equita-
ble balancing, conceding the point to the plaintiffs. So the
appeals turn entirely on whether the plaintiffs’ RFRA claims
are likely to succeed.
Two legal questions are contested: (1) is a secular, for-profit
corporation a “person” under RFRA; and (2) does the contra-
ception mandate substantially burden the religious-exercise
rights of any of the plaintiffs, individual or corporate? If the
answer to these questions is “yes,” the government must
discharge its burden of justifying the mandate under strict
scrutiny. We conclude as follows: The corporate plaintiffs are
“persons” under RFRA and may invoke the statute’s protec-
tion; the contraception mandate substantially burdens the
religious-exercise rights of all of the plaintiffs; and the govern-
ment has not carried its burden under strict scrutiny.
First, however, we clear away some possible jurisdictional
objections.
20 Nos. 12-3841 & 13-1077
A. Jurisdiction
Although the government never challenged jurisdiction,
either in the district court or here, we have an independent
obligation to satisfy ourselves that jurisdiction is secure before
proceeding to the merits. See Minn-Chem, Inc. v. Agrium Inc.,
683 F.3d 845, 853 (7th Cir. 2012) (en banc); Carroll v. Stryker
Corp., 658 F.3d 675, 680 (7th Cir. 2011). There are two arguable
jurisdictional issues lurking here: standing and the
Anti-Injunction Act.7
7
Just before oral argument, the government filed a “Notice of Supplemental
Briefing on Jurisdictional Issues,” drawing our attention to a brief it filed
in response to a jurisdictional order from the Tenth Circuit in Hobby Lobby.
The plaintiffs moved to strike this “notice.” Although the government’s
approach is unorthodox, we have reviewed its supplemental brief in the
Tenth Circuit case. In it the government argued that the corporate plaintiffs
in Hobby Lobby have standing but the owners of the corporations do not.
Supplemental Brief for Appellees at 3–9, Hobby Lobby Stores, Inc. v. Sebelius,
723 F.3d 1114 (10th Cir. 2013), 2013 W L 1790515 at *3–9. The government
also took the position that the Anti-Injunction Act does not apply. Id. at
12–15, 2013 W L 1790515 at *12–15. The Tenth Circuit, sitting en banc,
unanimously held that the corporations have standing and that the
Anti-Injunction Act does not apply; four members of the court also
concluded that the individual plaintiffs have standing. See Hobby Lobby,
723 F.3d at 1121, 1126 (Tymkovich, J.); id. at 1154–56 (Gorsuch, J., concur-
ring); id. at 1184–89 (M atheson, J., concurring in part and dissenting in part).
We have conducted our own jurisdictional analysis and find no jurisdic-
tional impediments to reaching the merits. Accordingly, the government’s
“Notice of Supplemental Briefing” is inconsequential, and we deny the
plaintiffs’ motion to strike.
Nos. 12-3841 & 13-1077 21
1. Standing
Article III of the Constitution limits the judicial power to
“Cases” and “Controversies,” U.S. CONST . art. III, § 2, cl. 1;
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013), a
limitation understood to confine the federal courts to “the
traditional role of Anglo-American courts, which is to redress
or prevent actual or imminently threatened injury to persons
caused by private or official violation of law,” Summers v. Earth
Island Inst., 555 U.S. 488, 492 (2009). The doctrine of standing
enforces this limitation. Id.; Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). To invoke the authority of a federal
court, a litigant must have “an injury that is concrete, particu-
larized, and actual or imminent; fairly traceable to the defen-
dant’s challenged action; and redressable by a favorable
ruling.” Horne v. Flores, 557 U.S. 433, 445 (2009).
The contraception mandate inflicts a concrete and particu-
larized injury on all of the plaintiffs.8 The mandate operates
directly on K & L Contractors and Grote Industries, forcing
them to provide contraception coverage in their employee
health-care plans on pain of onerous financial penalties and the
possibility of enforcement actions by federal regulators
8
We note that “[w]here at least one plaintiff has standing, jurisdiction is
secure and the court will adjudicate the case whether the additional
plaintiffs have standing or not.” Ezell v. City of Chicago, 651 F.3d 684, 696 n.7
(7th Cir. 2011) (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 264 (1977)).
22 Nos. 12-3841 & 13-1077
charged with implementing the Affordable Care Act.9 The
threat of financial penalty and other enforcement action is
easily sufficient to establish standing to challenge the mandate
prior to its enforcement. The companies need not violate the
mandate and risk enforcement of the regulatory scheme before
bringing suit. See Wis. Right to Life State Political Action Comm.
v. Barland, 664 F.3d 139, 147 (7th Cir. 2011). The “existence of a
statute implies a threat to prosecute, so pre-enforcement
challenges are proper [under Article III] because a probability
of future injury counts as ‘injury’ for purposes of standing.”
Bauer v. Shepard, 620 F.3d 704, 708 (7th Cir. 2010).
The Kortes and Grotes also have Article III standing,
although this conclusion requires a bit more elaboration. The
contraception mandate injures the individual plaintiffs in two
concrete ways. First, because corporate ownership is closely
held, the mandate’s indirect effect on the financial interests of
the Kortes and Grotes as controlling shareholders is a concrete
injury sufficient to support Article III standing under Supreme
Court and circuit precedent. See Franchise Tax Bd. of Calif. v.
Alcan Aluminum Ltd., 493 U.S. 331, 336 (1990) (indirect sole
shareholders have Article III standing to challenge taxes
assessed against their wholly owned subsidiaries); Rawoof v.
Texor Petroleum Co., 521 F.3d 750, 756 (7th Cir. 2008) (sole share-
holder of a corporation operating a branded petroleum
9
W hether the corporate plaintiffs are “persons” with religious-exercise
rights within the meaning of RFRA is a merits question, not a jurisdictional
question. See Chafin v. Chafin, 133 S. Ct. 1017, 1024 (2013); Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 102–03 (1998); Minn-Chem, Inc. v. Agrium Inc.,
683 F.3d 845, 852–53 (7th Cir. 2012) (en banc).
Nos. 12-3841 & 13-1077 23
franchise has Article III standing to challenge franchisor’s
termination of the franchise under the Petroleum Marketing
Practices Act).
Second, the Kortes and the Grotes face an intangible but no
less concrete injury to their religious-exercise rights. It is
axiomatic that organizational associations, including corpora-
tions, act only through human agency. See Reich v. Sea Sprite
Boat Co., 50 F.3d 413, 417 (7th Cir. 1995) (“incorporeal abstrac-
tions act through agents”). As owners, officers, and directors
of their closely held corporations, the Kortes and Grotes set all
company policy and manage the day-to-day operations of their
businesses. Complying with the mandate requires them to
purchase the required contraception coverage (or self-insure
for these services), albeit as agents of their companies and
using corporate funds. But this conflicts with their religious
commitments; as they understand the requirements of their
faith, they must refrain from putting this coverage in place
because doing so would make them complicit in the morally
wrongful act of another.
Compelling a person to do an act his religion forbids, or
punishing him for an act his religion requires, are paradigmatic
religious-liberty injuries sufficient to invoke the jurisdiction of
the federal courts. See, e.g., Gonzales v. O Centro Espirita
Beneficente Uniao Do Vegetal, 546 U.S. 418, 428 (2006); Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993);
United States v. Lee, 455 U.S. 252 (1982); Thomas v. Review Bd. of
the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981); Wisconsin v. Yoder,
406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963).
24 Nos. 12-3841 & 13-1077
Finally, we note that the shareholder-standing rule does not
block the Kortes and Grotes from challenging the mandate.
The rule is an aspect of third-party standing doctrine, which
implements the general principle that litigants may not sue in
federal court to enforce the rights of others. See Franchise Tax
Bd., 493 U.S. at 336; Warth v. Seldin, 422 U.S. 490, 498 (1975);
Rawoof, 521 F.3d at 757; MainStreet Org. of Realtors v. Calumet
City, 505 F.3d 742, 745 (7th Cir. 2007). Subject to certain
exceptions, the rule “holds that a shareholder generally cannot
sue for indirect harm he suffers as a result of an injury to the
corporation.” Rawoof, 521 F.3d at 757 (citing Franchise Tax Bd.,
493 U.S. at 336).
Like other rules of third-party standing, however, the
shareholder-standing rule is a prudential limitation and does
not affect the court’s authority to hear the case. “Prudential-
standing doctrine ‘is not jurisdictional in the sense that
Article III standing is.’ ” Id. at 756 (quoting MainStreet Realtors,
505 F.3d at 747). Unlike true jurisdictional rules, prudential
limitations on standing can be waived. See G & S Holdings LLC
v. Cont’l Cas. Co., 697 F.3d 535, 540 (7th Cir. 2012); MainStreet
Realtors, 505 F.3d at 747. By failing to raise the shareholder-
standing rule in the district court or here, the government
waived it. Although we have the discretion to overlook the
waiver, see Rawoof, 521 F.3d at 756–57; MainStreet Realtors,
505 F.3d at 747, doing so here would be pointless. A well-
established exception allows “a shareholder with a direct,
personal interest in a cause of action to bring suit even if the
corporation’s rights are also implicated.” Franchise Tax Bd.,
493 U.S. at 336. The Kortes and the Grotes fall comfortably
within the exception; they have a direct and personal interest
Nos. 12-3841 & 13-1077 25
in vindicating their individual religious-liberty rights, even
though the rights of their closely held corporations are also at
stake.
2. The Anti-Injunction Act
The Anti-Injunction Act provides that “no suit for the
purpose of restraining the assessment or collection of any tax
shall be maintained in any court by any person, whether or not
such person is the person against whom such tax was
assessed.” 26 U.S.C. § 7421(a). The Act “protects the Govern-
ment’s ability to collect a consistent stream of revenue[] by
barring litigation to enjoin or otherwise obstruct the collection
of taxes.” NFIB, 132 S. Ct. at 2582; see also Hibbs v. Winn,
542 U.S. 88, 103 (2004); Bob Jones Univ. v. Simon, 416 U.S. 725,
736 (1974); Enochs v. Williams Packing & Navigation Co., 370 U.S.
1, 7 (1962). By operation of the Act, a tax ordinarily may be
challenged only in a suit for a refund after it is paid. NFIB,
132 S. Ct. at 2582; Bob Jones Univ., 416 U.S. at 736–37.
The Anti-Injunction Act does not apply here.10 These are
not suits “for the purpose of” restraining the assessment or
collection of a tax. The suits seek relief from a regulatory
mandate that exists separate and apart from the assessment or
collection of taxes. The contraception mandate is not itself a tax
10
The A nti-Injunction Act is generally assumed to be a jurisdictional bar.
See Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 6–8 (1962). That
m ay be incorrect. See Hobby Lobby, 723 F.3d at 1157–59 (Gorsuch, J.,
concurring).
26 Nos. 12-3841 & 13-1077
provision; its location within the United States Code and
corresponding HHS regulations underscores as much.
The mandate was promulgated by HHS pursuant to
authority delegated to it by a section of the Affordable Care
Act that amends the Public Health Services Act. See 42 U.S.C.
§ 300gg-13(a)(4). The statutory component of the mandate
imposes a general preventive-care requirement on all group
health-care plans (including employer-sponsored plans) and
issuers of individual and group health-insurance policies. See
id. The mandate is situated in the public-welfare title of the
Code of Federal Regulations—more specifically, in the part
containing regulations governing the group and individual
health-insurance markets. See 45 C.F.R. § 147.130. The mandate
is backed by stiff tax penalties against employers that fail to
comply, see 26 U.S.C. §§ 4980D, 4980H, but there are additional
consequences for noncompliance, including ERISA enforce-
ment actions by the Secretary of Labor and plan participants
and beneficiaries, see 29 U.S.C. §§ 1132, 1185d. Noncompliant
health insurers are subject to the enforcement authority of the
Secretary of HHS as well as the states in which they operate.
See 42 U.S.C. § 300gg-22.
It should be clear from this description that the contracep-
tion mandate is not structured as a predicate to the imposition
of a tax but is instead an independent regulatory mandate.
These lawsuits target the mandate itself.
It is true that the complaints name the Treasury Secretary
as a defendant in addition to the Secretaries of HHS and Labor,
and the plaintiffs have asked the court to enjoin the enforce-
ment of the mandate by any of them. If the plaintiffs win an
Nos. 12-3841 & 13-1077 27
exemption from the mandate, they will not be liable for the tax
penalty under § 4980D and will be insulated from other means
of enforcement as well. In that sense these lawsuits, if success-
ful, will incidentally affect the corporate plaintiffs’ tax liability.
But the Anti-Injunction Act does not reach “all disputes
tangentially related to taxes.” Cohen v. United States, 650 F.3d
717, 727 (D.C. Cir. 2011); see also Pendleton v. Heard, 824 F.2d
448, 451–52 (5th Cir. 1987) (restraining the assessment or
collection of a tax must be the primary purpose of the lawsuit,
not an incidental effect of it, for the Anti-Injunction Act to
apply); Linn v. Chivatero, 714 F.2d 1278, 1282 (5th Cir. 1983)
(same).
Still, there is no doubt that § 4980D, a provision in the
Internal Revenue Code, is implicated in the remedial sweep of
these cases, so we think it best to address whether it is properly
classified as a “tax” within the meaning of the Anti-Injunction
Act. It is not.
We acknowledge that Congress used the term “tax” in the
text of § 4980D (and also in § 4980H, the alternative “shared
responsibility payment” for employers that drop or otherwise
go without an employee health-care plan). The language
Congress uses to describe an exaction is ordinarily the best
evidence of whether it meant the Anti-Injunction Act to apply.
See NFIB, 132 S. Ct. at 2582–83. But Congress also called the
payment specified in § 4980D a “penalty.” The statute was
originally adopted as part of the Health Insurance Portability
and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat.
1936, and was titled “Penalty on Failure to Meet Certain Group
Health Plan Requirements,” see id. § 402, 110 Stat. 1936, 2084
28 Nos. 12-3841 & 13-1077
(emphasis added). The language Congress used is contradic-
tory and thus inconclusive.
Other features of § 4980D confirm that the provision is
meant to penalize employers for noncompliance with the
various mandates in the Affordable Care Act and its imple-
menting regulations. The sheer size of the required payment
fairly screams “penalty.” Any failure to provide the mandated
minimum coverage—no matter how significant the deviation—
costs the employer a whopping $100 per day per employee. See
26 U.S.C. § 4980D(b). Exacting such a high price for noncompli-
ance suggests that the congressional objective is punitive. See
Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 651 F.3d
722, 729 (7th Cir. 2011) (“[A] tax might be so totally punitive in
purpose and effect that, since nomenclature is unimportant, it
should be classified as a fine rather than a tax.”) (applying the
parallel Tax Injunction Act, which protects the collection of
state taxes).
When Congress regulates private conduct and makes
noncompliance painful by exacting severe and disproportion-
ate monetary consequences, the primary purpose of the
scheme must be understood as regulatory and punitive rather
than revenue raising. See Robertson v. United States, 582 F.2d
1126, 1128 (7th Cir. 1978) (the Anti-Injunction Act does not
apply to “the exaction of a purely regulatory tax”). The
obvious aim of § 4980D is not to raise revenue but to achieve
broad compliance with the regulatory regime through deter-
rence and punishment. This is so even though the exaction
generates some revenue because “deterrence is never perfect.”
Empress Casino, 651 F.3d at 728–29; see also Retail Indus. Leaders
Nos. 12-3841 & 13-1077 29
Ass’n v. Fielder, 475 F.3d 180, 189 (4th Cir. 2007) (the Tax
Injunction Act does not apply to a challenge to Maryland’s
“Fair Share Act” requiring a minimum level of spending on
employee health-care benefits).
The statute also contains several exceptions based on the
employer’s scienter, see 26 U.S.C. § 4980D(c), a key indication
that the payment is a penalty, not a tax. See NFIB, 132 S. Ct. at
2595 (“[S]cienter requirements are typical of punitive statutes,
because Congress often wishes to punish only those who
intentionally break the law.”); Bailey v. Drexel Furniture Co.
(Child Labor Tax Case), 259 U.S. 20, 37 (1922) (“Scienter[] [is]
associated with penalties, not with taxes.”). Finally, the
$100-per-day-per-employee formula is repeated verbatim in
42 U.S.C. § 300gg-22(b)(2)(C)(ii), which authorizes the Secretary
of HHS to impose the same sort of penalty on noncompliant
insurers that § 4980D(b)(1) imposes on noncompliant employ-
ers.
Together, these aspects of the regulatory scheme all point
in the same direction: Section 4980D is a penalty for noncom-
pliance with the regulatory mandates on employer-based
health-care plans. It is not a tax for purposes of the Anti-
Injunction Act. By parallel reasoning the same is true of the
alternative payment in § 4980H. This conclusion comports with
the Supreme Court’s decision in NFIB, which held that the
Affordable Care Act’s “shared responsibility payment” for
noncompliance with the individual insurance mandate is not
a tax for purposes of the Anti-Injunction Act. 132 S. Ct. at2582–84. Here, as in NFIB, the Anti-Injunction Act does not
block a decision on the merits.
30 Nos. 12-3841 & 13-1077
B. The RFRA Claim
In Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872, 883–90 (1990), the Supreme Court
held that the religious freedom guaranteed by the Free Exercise
Clause of the First Amendment does not require religious
exemptions from facially neutral laws of general applicability.11
Smith altered the then-prevailing standard of Sherbert v. Verner,
374 U.S. at 406–07, and Wisconsin v. Yoder, 406 U.S. at 220–21,
which applied strict scrutiny to laws that had the effect of
burdening religious practices. Under Sherbert and Yoder, a
substantial burden on religious exercise—even one arising
from the application of a religion-neutral, generally applicable
law—was unconstitutional unless the government could show
that the burden was the least restrictive means of furthering a
compelling public interest. Smith changed that understanding
of the free-exercise right. The Court held that neutral laws of
general applicability need only satisfy the basic test for
rationality that applies to all laws; if a law incidentally burdens
the exercise of religion, the Constitution does not require an
exemption. Smith, 494 U.S. at 878–79, 888–90.
Congress responded to this shift in free-exercise doctrine by
enacting RFRA, “a statutory rule comparable to the constitu-
tional rule rejected in Smith.” O Centro Espirita, 546 U.S. at 424;
see also Cutter v. Wilkinson, 544 U.S. 709, 714–15 (2005); City of
Boerne v. Flores, 521 U.S. 507, 512 (1997). RFRA creates a broad
11
The First Amendment provides, in pertinent part: “Congress shall make
no law respecting an establishment of religion, or prohibiting the free
exercise thereof … .” U.S. C O N ST . amend. I.
Nos. 12-3841 & 13-1077 31
statutory right to case-specific exemptions from laws that
substantially burden religious exercise even if the law is neutral
and generally applicable, unless the government can satisfy the
compelling-interest test. RFRA represents a congressional
judgment that the rule of Smith is insufficiently protective of
religious liberty.12 Congress filled the gap by expressly
12
Congress’s findings and purposes in enacting RFRA are as follows:
(a) Findings
The Congress finds that—
(1) the framers of the Constitution, recog-
nizing free exercise of religion as an unalien-
able right, secured its protection in the First
Amendment to the Constitution;
(2) laws “neutral” toward religion may
burden religious exercise as surely as laws
intended to interfere with religious exercise;
(3) governments should not substantially
burden religious exercise without compelling
justification;
(4) in Employment Division v. Smith,
494 U.S. 872 (1990)[,] the Supreme Court
virtually eliminated the requirement that the
government justify burdens on religious
exercise imposed by laws neutral toward
religion; … .
(b) Purposes
The purposes of this chapter are—
(1) to restore the compelling interest test
(continued...)
32 Nos. 12-3841 & 13-1077
“requir[ing] accommodation rather than neutrality.” O’Bryan v.
Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003).
RFRA’s general rule is as follows:
Free exercise of religion protected
(a) In general
Government shall not substantially burden a
person’s exercise of religion even if the burden
results from a rule of general applicability,
except as provided in subsection (b) of this
section.
42 U.S.C. § 2000bb-1. The exception is as follows:
(b) Exception
Government may substantially burden a
person’s exercise of religion only if it demon-
strates that application of the burden to the
person—
12
(...continued)
as set forth in Sherbert v. Verner, 374 U.S. 398(1963)[,] and Wisconsin v. Yoder, 406 U.S. 205(1972)[,] and to guarantee its application in all
cases where free exercise of religion is sub-
stantially burdened; and
(2) to provide a claim or defense to per-
sons whose religious exercise is substantially
burdened by government.
42 U.S.C. § 2000bb.
Nos. 12-3841 & 13-1077 33
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental
interest.
Id.13 Any “person whose religious practices are burdened in
violation of RFRA ‘may assert that violation as a claim or
defense in a judicial proceeding and obtain appropriate
relief.’ ” O Centro Espirita, 546 U.S. at 424 (quoting 42 U.S.C.
§ 2000bb-1(c)).
RFRA applies retrospectively and prospectively to “all
Federal law, and the implementation of that law, whether
statutory or otherwise, and whether adopted before or after”
its effective date. 42 U.S.C. § 2000bb-3(a). Prospective applica-
tion is qualified by the rule that “statutes enacted by one
Congress cannot bind a later Congress, which remains free to
repeal the earlier statute, to exempt the current statute from the
earlier statute, to modify the earlier statute, or to apply the
earlier statute as modified.” Dorsey v. United States, 132 S. Ct.
2321, 2331 (2012). RFRA accounts for this principle too; the
statute does not apply to a subsequently enacted law if it
13
In City of Boerne v. Flores, 521 U.S. 507, 532–36 (1997), the Supreme Court
held that as applied to the States, RFRA exceeded Congress’s legislative
authority under § 5 of the Fourteenth Amendment. This did not call into
question Congress’s authority to “determine how the national government
will conduct its own affairs,” O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401
(7th Cir. 2003), so RFRA remains in full force against the federal govern-
ment, see Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S.
418 (2006); see also O’Bryan, 349 F.3d at 401.
34 Nos. 12-3841 & 13-1077
“explicitly excludes such application by reference to this
chapter.” 42 U.S.C. § 2000bb-3(b). We note the qualifier only to
explain how RFRA works; it has no bearing here. The Afford-
able Care Act does not explicitly exclude application of RFRA.
* * *
Congress’s protective stance in favor of religious accommo-
dation could not be clearer. RFRA’s statement of purpose
explicitly reaffirms our national commitment to the “free
exercise of religion as an unalienable right,” id. § 2000bb(a)(1),
existing prior to and above ordinary law. RFRA is structured
as a “sweeping ‘super-statute,’ cutting across all other federal
statutes (now and future, unless specifically exempted) and
modifying their reach.” Michael Stokes Paulsen, A RFRA Runs
Through It: Religious Freedom and the U.S. Code, 56 MONT. L. REV .
249, 253 (1995). It is “both a rule of interpretation” and “an
exercise of general legislative supervision over federal agen-
cies, enacted pursuant to each of the federal powers that gives
rise to legislation or agencies in the first place.” Douglas
Laycock & Oliver S. Thomas, Interpreting the Religious Freedom
Restoration Act, 73 TEX. L. REV . 209, 211 (1994); see also Nicholas
Quinn Rosenkranz, Federal Rules of Statutory Interpretation,
115 HARV . L. REV . 2085, 2110 (2002) (explaining the function of
generally applicable statutory rules of interpretation).
In short, RFRA operates as a kind of utility remedy for the
inevitable clashes between religious freedom and the realities
of the modern welfare state, which regulates pervasively and
touches nearly every aspect of social and economic life. See
Thomas C. Berg, What Hath Congress Wrought? An Interpretative
Nos. 12-3841 & 13-1077 35
Guide to the Religious Freedom Restoration Act, 39 VILL. L. REV . 1,
25–26 (1994). Judges are assigned the task of mediating these
conflicts. RFRA makes that role clear, “mandating consider-
ation, under the compelling interest test, of exceptions to rules
of general applicability.” O Centro Espirita, 546 U.S. at 436(internal quotation marks and alteration marks omitted).
Congress has instructed the judiciary to hold the entire federal
regulatory apparatus to the standard of Sherbert, unless a
statute specifically says otherwise.
* * *
Once a RFRA claimant makes a prima facie case that the
application of a law or regulation substantially burdens his
religious practice, the burden shifts to the government to
justify the burden under strict scrutiny. O Centro Espirita,
546 U.S. at 428. “Congress’s express decision to legislate the
compelling interest test indicates that RFRA challenges should
be adjudicated in the same manner as constitutionally man-
dated applications of the test … .” Id. at 430. Thus, in RFRA liti-
gation, as in First Amendment litigation, “the burdens at the
preliminary injunction stage track the burdens at trial.” Id. at
429.
1. For-Profit Corporations as RFRA “Persons”
RFRA’s general rule prohibits the federal government from
placing substantial burdens on “a person’s exercise of religion”
absent compelling justification, and only then if the burden is
the least restrictive means of furthering the compelling
36 Nos. 12-3841 & 13-1077
governmental objective. As originally enacted, RFRA defined
“exercise of religion” as “the exercise of religion under the First
Amendment to the Constitution.” Pub. L. No. 103-141, § 5,
107 Stat. 1488, 1489 (1993). Congress amended the definition in
2000 with the enactment of the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc
et seq., making the definitions in the two statutes uniform. The
term “exercise of religion” in RFRA is now defined by cross-
reference to the definition of “religious exercise” in RLUIPA:
“The term ‘religious exercise’ includes any exercise of religion,
whether or not compelled by, or central to, a system of
religious belief.” Id. §§ 2000cc-5(7)(A), 2000bb-2(4). This defini-
tion is undeniably very broad, so the term “exercise of reli-
gion” should be understood in a generous sense.
RFRA does not define “person.” This brings the Dictionary
Act into play.14 The definition there expressly includes corpora-
tions: “In determining the meaning of any Act of Congress,
unless the context indicates otherwise[,] … the word[]
‘person’ … include[s] corporations, companies, associations,
firms, partnerships, societies, and joint stock companies, as
well as individuals … .” 1 U.S.C. § 1 (emphasis added). By
operation of this omnibus definition, the term “person” in
RFRA includes corporations, unless the context indicates
otherwise.
14
The Dictionary Act is notable for its breadth. It contains general defini-
tions and rules of construction that apply across the United States Code,
prospectively and retrospectively unless otherwise indicated. See Nicholas
Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 H A RV . L. R EV .
2085, 2110 (2002).
Nos. 12-3841 & 13-1077 37
To determine whether the context “indicates otherwise,”
the Supreme Court has instructed us not to stray too far from
the statutory text. See Rowland v. Calif. Men’s Colony, Unit II
Men’s Advisory Council, 506 U.S. 194, 199–200 (1993). “ ‘Context’
here means the text of the Act of Congress surrounding the
word at issue, or the texts of other related congressional
Acts … .” Id. at 199. The inquiry basically asks whether the
definition in the Dictionary Act is a “poor fit” with the text of
the statute:
Where a court needs help is in the awkward case
where Congress provides no particular defini-
tion, but the definition in 1 U.S.C. § 1 seems not
to fit. There it is that the qualification “unless the
context indicates otherwise” has a real job to do,
in excusing the court from forcing a square peg
into a round hole.
The point at which the indication of particu-
lar meaning becomes insistent enough to excuse
the poor fit is of course a matter of judgment … .
Id. at 200.
Nothing in RFRA suggests that the Dictionary Act’s
definition of “person” is a “poor fit” with the statutory scheme.
To use the Supreme Court’s colloquialism, including corpora-
tions in the universe of “persons” with rights under RFRA is
not like “forcing a square peg into a round hole.” Id. A corpo-
ration is just a special form of organizational association. No
one doubts that organizational associations can engage in
religious practice. The government accepts that some corpora-
tions—religious nonprofits—have religious-exercise rights
38 Nos. 12-3841 & 13-1077
under both RFRA and the Free-Exercise Clause. As evidence of
this, the contraception mandate exempts a class of religious
organizations—i.e., churches and their integrated auxiliaries,
see 45 C.F.R. § 147.131(a)—whether or not they conduct their
activities in the corporate form (as many of them do). HHS also
extends its “accommodation” to a broader set of religiously
affiliated nonprofit corporations. See id. § 147.131(b).
Indeed, the Supreme Court has enforced the RFRA rights
of an incorporated religious sect, see O Centro Espirita, 546 U.S.
at 439, aff’g 389 F.3d 973, 973 (10th Cir. 2004) (en banc) (identi-
fying the plaintiff church as “a New Mexico corporation”), and
the free-exercise rights of an incorporated church, see Lukumi,
508 U.S. at 525, 547. The church corporations in these cases
were not in court solely asserting the rights of their members
based on associational standing; they were asserting their own
rights, too.15 Accordingly, we take it as both conceded and
noncontroversial that the use of the corporate form and the
associated legal attributes of that status—think separate legal
personhood, limitations on owners’ liability, special tax
treatment—do not disable an organization from engaging in
the exercise of religion within the meaning of RFRA (or the
Free Exercise Clause, for that matter).
The government draws the line at religiously affiliated
nonprofit corporations. That line is nowhere to be found in the
15
For the rules of associational standing, see United Food & Commercial
Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 553 (1996); Hunt
v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977);
and Ezell v. City of Chicago, 651 F.3d 684, 696 (7th Cir. 2011).
Nos. 12-3841 & 13-1077 39
text of RFRA or any related act of Congress. Nor can it be
found in the statute’s broader contextual purpose, assuming
we were to venture beyond the textual inquiry envisioned by
the Supreme Court for resolving Dictionary Act questions. The
government argues that a religious/nonprofit limitation can be
found by implication from judicial interpretations of two
unrelated employment-discrimination statutes—namely,
Title VII and the Americans with Disabilities Act (“ADA”)—
both of which contain targeted exemptions for religious
employers. We are not convinced.
Title VII of the Civil Rights Act of 1964 prohibits
employment discrimination on the basis of religion. See
42 U.S.C. § 2000e-2. Certain religious employers are exempt
from this part of Title VII and may take religion into account in
making employment decisions: “This subchapter shall not
apply … to a religious corporation, association, educational
institution, or society with respect to the employment of
individuals of a particular religion … .” Id. § 2000e-1(a). The
ADA, which prohibits employment discrimination on the basis
of disability, contains a similar exemption for religious employ-
ers. See id. § 12113(d)(1)–(2). Some lower courts have developed
multifactor tests to determine when Title VII’s religious-
employer exemption applies; the nonprofit status of the
employer is considered a relevant factor. See, e.g., Spencer v.
World Vision, Inc., 633 F.3d 723, 727 (9th Cir. 2011) (en banc)
(per curiam); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n,
503 F.3d 217, 226 (3d Cir. 2007); Univ. of Great Falls v. NLRB,
278 F.3d 1335, 1343–44 (D.C. Cir. 2002) (applying a religious-
employer exemption implied by the Supreme Court as a matter
of constitutional avoidance to limit the reach of the National
40 Nos. 12-3841 & 13-1077
Labor Relations Act); Killinger v. Samford Univ., 113 F.3d 196,
198–99 (11th Cir. 1997); EEOC v. Townley Eng’g & Mfg. Co.,
859 F.2d 610, 618–19 (9th Cir. 1988). Relying on this line of
cases, the government argues that Congress “carried forward”
a nonprofit limitation when it enacted RFRA.
Never mind that much of this caselaw postdates the
enactment of RFRA. The more important point is that a
handful of lower-court decisions applying an interpretive gloss
to Title VII’s religious-employer exemption hardly implies that
Congress meant to limit RFRA in the same way. As the Tenth
Circuit noted in Hobby Lobby, the government asks us to infer
from congressional silence that a “similar narrowing construc-
tion[] should be imported into” RFRA. 723 F.3d at 1130. The
Tenth Circuit found this argument “strained,” id., and so do
we. If Congress intended a nonprofit limitation in RFRA,
surely there would be some hint of it in the statutory text.
The government also relies on the Supreme Court’s
decision in Corporation of the Presiding Bishop of the Church of
Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987). We
do not understand why. Amos rejected an Establishment
Clause challenge to Title VII’s religious-employer exemption.
Id. at 335–39. The case does not advance the government’s
position here.
To the contrary, the church labor-relations cases illuminate
a fundamental flaw in the government’s argument—its failure
to recognize that RFRA protects religious liberty more broadly
than the religious-employer exemptions in Title VII and the
ADA. To see how, it’s helpful to return to some first principles
of free-exercise doctrine.
Nos. 12-3841 & 13-1077 41
It’s well understood that the Free Exercise Clause protects
“first and foremost, the right to believe and profess,” but also
the right to engage in religiously motivated conduct. Smith,
494 U.S. at 877. (“The ‘exercise of religion’ often involves not
only belief and profession but the performance of (or absten-
tion from) physical acts … .”); see also Bob Jones Univ. v. United
States, 461 U.S. 574, 603 (1983) (“[T]he Free Exercise Clause
provides substantial protection for lawful conduct grounded
in religious belief … .”); Cantwell v. Connecticut, 310 U.S. 296,
303 (1940) (The “[First] Amendment embraces two con-
cepts[]—[the] freedom to believe and freedom to act.”). This
doctrine reflects the original understanding of the right. See
Michael W. McConnell, The Origins and Historical Understanding
of Free Exercise of Religion, 103 HARV . L. REV . 1409, 1488 (1990)
(“[T]he term ‘free exercise’ makes clear that the clause protects
religiously motivated conduct as well as belief.”).
The right to believe and profess is absolute. See Bob Jones
Univ. v. United States, 461 U.S. at 603 (the Free Exercise Clause
is “an absolute prohibition against governmental regulation of
religious beliefs”); Sherbert, 374 U.S. at 402 (“The door of the
Free Exercise Clause stands tightly closed against any govern-
mental regulation of religious beliefs as such … .” (emphasis
added)); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642
(1943) (“If there is any fixed star in our constitutional constella-
tion, it is that no official, high or petty, can prescribe what shall
be orthodox in politics, nationalism, religion, or other matters
of opinion or force citizens to confess by work or act their faith
therein.”). Religiously motivated conduct is necessarily subject
to some regulation for the essential public good. Sherbert,
374 U.S. at 403 (religiously motivated conduct may be
42 Nos. 12-3841 & 13-1077
regulated to prevent “substantial threat[s] to public safety,
peace or order”).
Free-exercise problems usually arise when a law, regula-
tion, or some action of a public official interferes with a
religiously motivated practice, forbearance, or other conduct.
These claims present in distinct ways, reflecting different
dimensions of the right. See generally Douglas Laycock, Towards
a General Theory of the Religion Clauses: The Case of Church Labor
Relations and the Right to Church Autonomy, 81 COLUM . L. REV .
1373, 1388–89 (1981); Eugene Volokh, A Common-Law Model for
Religious Exemptions, 46 UCLA L. REV . 1465, 1505–08 (1999).
One obvious and intuitive aspect of religious liberty is the
right of conscientious objection to laws and regulations that
conflict with conduct prescribed or proscribed by an adherent’s
faith. Sherbert, Yoder, and Thomas are the paradigm cases in this
category. In Sherbert a Seventh-day Adventist was denied
unemployment compensation benefits after she lost her job for
refusing to work on her Sabbath day. 374 U.S. at 399–400. In
Yoder Amish families challenged the application of a state
compulsory-education law requiring their children to attend
public school through age 16. 406 U.S. at 207–09. In Thomas a
Jehovah’s Witness was denied unemployment compensation
benefits after he was fired for declining a job transfer to a
department that produced war materials. 450 U.S. at 709–12. In
all three cases, the claimants asserted a conscientious objection
to legal burdens placed on their religiously motivated conduct.
In all three the Supreme Court held that the Free Exercise
Clause required an exemption. See id. at 718–19; Yoder, 406 U.S.
at 234–36; Sherbert, 374 U.S. at 398–99.
Nos. 12-3841 & 13-1077 43
A different aspect of religious liberty protects, broadly
speaking, the autonomy of the church. As the Supreme Court
explained in Hosanna-Tabor Evangelical Lutheran Church &
School v. EEOC, 132 S. Ct. 694, 706 (2012), this strand of
religious-liberty doctrine “gives special solicitude to the rights
of religious organizations” as religious organizations, respect-
ing their autonomy to shape their own missions, conduct their
own ministries, and generally govern themselves in accordance
with their own doctrines as religious institutions. Id. at 704–06.
The paradigm cases in this category are Hosanna-Tabor itself,
which recognized the right of churches to choose their own
ministers (broadly understood) and adopted a constitutional
ministerial exception to laws regulating employment discrimi-
nation, see id. at 705–06, and the church-property cases, see
Serbian E. Orthodox Diocese for the U.S. & Can. v. Milivojevich,
426 U.S. 696 (1976); Presbyterian Church in the U.S. v. Mary
Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440(1969); Kedroff v. St. Nicholas Cathedral of Russian Orthodox
Church in N. Am., 344 U.S. 94 (1952).
The church-autonomy doctrine respects the authority of
churches to “select their own leaders, define their own doc-
trines, resolve their own disputes, and run their own institu-
tions” free from governmental interference. Laycock, Towards
a General Theory of the Religion Clauses, supra, at 1389. This
dimension of religious liberty has a foothold in both Religion
Clauses, see Hosanna-Tabor, 132 S. Ct. at 702, and is perhaps best
understood as marking a boundary between two separate
polities, the secular and the religious, and acknowledging the
prerogatives of each in its own sphere. For example, in
Milivojevich, a church-property case, the Court explained that
44 Nos. 12-3841 & 13-1077
the First Amendment “permit[s] hierarchical religious organi-
zations to establish their own rules and regulations for internal
discipline and government, and to create tribunals for adjudi-
cating disputes over these matters.” 426 U.S. at 724. When a
church tribunal or other religious authority decides an internal
dispute, “the Constitution requires … civil courts [to] accept
th[at] decision[] as binding.” Id. at 725; see also Richard W.
Garnett, A Hands-Off Approach to Religious Doctrine: What Are
We Talking About?, 84 NOTRE DAME L. REV . 837, 861 (2009)
(explaining that the church-autonomy doctrine recognizes that
secular tribunals “lack the power to answer some ques-
tions—religious questions—whose resolution is, under an
appropriately pluralistic political theory, left to other institu-
tions”).
Two related principles are at work in these cases. First, civil
authorities have no say over matters of religious governance;
and second, secular judges must defer to ecclesiastical authori-
ties on questions properly within their domain. These limita-
tions arise from the justification for the different aspects of
religious liberty secured by the Religion Clauses. See Douglas
Laycock, Church Autonomy Revisited, 7 GEO . J.L. & PUB . POL ’Y
253, 260–65 (2009). As the Supreme Court explained in
Hosanna-Tabor:
Requiring a church to accept or retain an un-
wanted minister, or punishing a church for
failing to do so, intrudes upon more than a mere
employment decision. Such action interferes with
the internal governance of the church, depriving
the church of control over the selection of those
Nos. 12-3841 & 13-1077 45
who will personify its beliefs. By imposing an
unwanted minister, the state infringes the Free
Exercise Clause, which protects a religious
group’s right to shape its own faith and mission
through its appointments. According the state
the power to determine which individuals will
minister to the faithful also violates the Establish-
ment Clause, which prohibits governmental
involvement in such ecclesiastical decisions.
132 S. Ct. at 706.
In this way the Religion Clauses work together to protect
the institutional freedom of the church “for itself, and not
simply as a proxy for the religious-liberty rights of individu-
als,” in light of the Constitution’s ordering of the relationship
between religion and government. Richard W. Garnett,
Standing, Spending, and Separation: How the No-Establishment
Rule Does (and Does Not) Protect Conscience, 54 VILL . L. REV . 655,
674 (2009); see also Paul Horwitz, Churches as First Amendment
Institutions: Of Sovereignty and Spheres, 44 HARV . C.R.-C.L. L.
REV . 79, 116–22 (2009).16
16
See also Thomas C. Berg, The Voluntary Principle and Church Autonomy,
Then and Now, 2004 BYU L. R EV . 1593 (2004); Gerard V. Bradley, Church
Autonomy in the Constitutional Order: The End of Church and State?, 49 L A . L.
R EV . 1057 (1989); Kathleen A. Brady, Religious Organizations and Free
Exercise: The Surprising Lessons of Sm ith, 2004 BYU L. R EV . 1633 (2004);
Richard W. Garnett, D o Churches Matter? Towards an Institutional Under-
standing of the Religion Clauses, 53 V ILL . L. R EV . 273 (2008); Christopher C.
Lund, In Defense of the Ministerial Exception, 90 N.C. L. R EV . 1 (2011);
Howard M . Wasserman, Prescriptive Jurisdiction, Adjudicative Jurisdiction, and
(continued...)
46 Nos. 12-3841 & 13-1077
The religious-employer exemptions in Title VII and the
ADA are legislative applications of the church-autonomy
doctrine. By their terms the exemptions are limited to reli-
giously affiliated employers, a limitation that makes sense in
light of the rationale for the rule. The exemption is categorical,
not contingent; there is no balancing of competing interests,
public or private. In other words, where it applies, the church-
autonomy principle operates as a complete immunity, or very
nearly so. Such a strong hands-off principle isn’t justified for
organizational associations that are not religiously affiliated.
In contrast, the judicial remedy in RFRA is both broader
and more flexible. It covers religious organizations as such, but
it does not stop there. The remedy is available to any sincere
religious objector—individuals and organizations alike—and
its organizational applications are not limited to religiously
affiliated organizations. The exemption is comprehensive in
that it applies across the United States Code and Code of
Federal Regulations and restrains the conduct of all federal
officials. But it can be overridden by a sufficiently strong
governmental interest.
For these reasons, the cases interpreting the Title VII and
ADA exemptions do not shed light on the scope of the RFRA
exemption. The government’s proposed exclusion of secular,
for-profit corporations finds no support in the text or relevant
context of RFRA or any related statute.
16
(...continued)
the Ministerial Exemption, 160 U. P A . L. R EV . PENN U M BRA 289 (2012).
Nos. 12-3841 & 13-1077 47
* * *
That’s enough to resolve the matter, but it’s worth briefly
exploring whether RFRA’s animating purpose provides a clue
that it is not meant to apply to secular, for-profit corporations.
Congress was clear that RFRA codifies pre-Smith free-exercise
jurisprudence—in particular, the rule of Sherbert and Yoder—so
if the Supreme Court’s pre-Smith free-exercise cases categori-
cally excluded secular, for-profit corporations, then perhaps
RFRA should be understood that way, too.
We begin by reiterating two doctrinal points we made a
moment ago: (1) the Free Exercise Clause protects not just
belief and profession but also religiously motivated conduct;
and (2) individuals and organizations—whether incorporated
or not—can exercise religion. It’s common ground that
nonprofit religious corporations exercise religion in the sense
that their activities are religiously motivated. So unless there is
something disabling about mixing profit-seeking and religious
practice, it follows that a faith-based, for-profit corporation can
claim free-exercise protection to the extent that an aspect of its
conduct is religiously motivated.
We acknowledge the novelty of the question; the Supreme
Court has never considered whether a for-profit corporation
may assert a free-exercise claim. See Hobby Lobby Stores, Inc. v.
Sebelius, 133 S. Ct. 641, 643 (Sotomayor, Circuit Justice 2012)
(“This Court has not previously addressed similar RFRA or
free exercise claims brought by closely held for-profit corpora-
tions and their controlling shareholders … .”). But the Court
has on several occasions addressed the free-exercise rights of
individuals engaged in commercial or profit-making activity.
48 Nos. 12-3841 & 13-1077
We have already mentioned Thomas and Sherbert, both of
which involved claimants who lost their jobs for refusing to
work on days or in ways that would violate their faith. See
Thomas, 450 U.S. at 709–11; Sherbert, 374 U.S. at 399–400. The
cases challenged the denial of unemployment compensation
benefits, but the background facts involved the loss of remu-
nerative employment at a foundry and a mill. In other words,
Eddie Thomas and Adell Sherbert were working for money yet
they retained their free-exercise rights and were permitted to
assert them against the denial of unemployment benefits. The
Court held that Thomas and Sherbert could not be compelled
to choose between their livelihoods and their faith. See Thomas,
450 U.S. at 717 (“Here, as in Sherbert, the employee was put to
a choice between fidelity to religious belief or cessation of
work; the coercive impact on Thomas is indistinguishable from
Sherbert … .”); Sherbert, 374 U.S. at 404 (“The [unemployment
compensation] ruling forces [Adell Sherbert] to choose
between following the precepts of her religion and forfeiting
benefits, on the one hand, and abandoning one of the precepts
of her religion in order to accept work, on the other hand.”). If
the government is correct that entering the marketplace and
earning money forfeits free-exercise rights, then Thomas and
Sherbert would have been decided differently.
In Braunfeld v. Brown, 366 U.S. 599, 600–02 (1961), Jewish
merchants brought a free-exercise challenge against Pennsylva-
nia’s Sunday-closing law, which put them at a competitive
disadvantage based on their Sabbath. Again, if profit-making
alone was enough to disqualify the merchants from bringing
the claim, the Court surely would have said so. It did not.
Nos. 12-3841 & 13-1077 49
Instead, the Court addressed and rejected their free-exercise
claim on the merits. Id. at 608–09.
In United States v. Lee, 455 U.S. 252 (1982), an Amish farmer
sought a religious exemption from the obligation to withhold
and pay Social Security taxes for his employees, coreligionists
who worked on his farm and in his carpentry shop. Id. at
254–55. The Amish religion holds that members of the religious
community must provide for their own needy and elderly. Id.The Social Security system exempts self-employed religious
objectors but not employers, so the farmer asserted a constitu-
tional right to an exemption. Id. at 255–56. The Court held that
“compulsory participation in the social security system
interferes with the[] free exercise rights” of the Amish. Id. at
257. But the Court concluded that the strong public interest in
the financial soundness of the Social Security system was
enough to defeat the farmer’s claim for an exemption:
The tax system could not function if denomina-
tions were allowed to challenge the … system
because tax payments were spent in a manner
that violates their religious belief[s]. … Because
the broad public interest in maintaining a sound
tax system is of such a high order, religious belief
in conflict with the payment of taxes affords no
basis for resisting the tax.
Id. at 260.
Like the merchants in Braunfeld, the Amish farmer in Lee
was engaged in farming and furniture-making not for subsis-
tence but for profit. If moneymaking were enough to foreclose
50 Nos. 12-3841 & 13-1077
the claim, the Court would not have addressed the burden on
his free-exercise rights or the public interest in the sound
administration of the Social Security system. Instead, the Court
gave the claim plenary review and found a compelling reason
to deny an exemption.
These cases show that far from categorically excluding
profit-seekers from the scope of the free-exercise right, the
Supreme Court has considered their claims on the merits,
granting exemptions in some and not others based on the
compelling-interest test.
The government relies on a concluding statement in Lee as
support for its position that profit-making is incompatible with
free-exercise rights:
Congress and the courts have been sensitive
to the needs flowing from the Free Exercise
Clause, but every person cannot be shielded
from all the burdens incident to exercising every
aspect of the right to practice religious beliefs.
When followers of a particular sect enter into com-
mercial activity as a matter of choice, the limits they
accept on their own conduct as a matter of conscience
and faith are not to be superimposed on the statutory
schemes which are binding on others in that activity.
Id. at 261 (emphasis added).
The government apparently reads this passage as foreclos-
ing all religious-exercise claims arising in the course of
commercial activity merely because the context is commercial.
That reading is both unsound and extraordinary. Unsound
Nos. 12-3841 & 13-1077 51
because it would nullify the rest of the Court’s opinion, which
considered the Amish farmer’s claim on the merits even
though his activities were for profit; the commercial context
did not defeat the claim. And extraordinary because it would
leave religious exercise wholly unprotected in the commercial
sphere. At bottom, the government’s argument is premised on
a far-too-narrow view of religious freedom: Religious exercise
is protected in the home and the house of worship but not
beyond. Religious people do not practice their faith in that
compartmentalized way; free-exercise rights are not so
circumscribed.
If the government’s view is correct, commonplace religious
practices normally thought protected would fall outside the
scope of the free-exercise right. The Jewish deli is the usual
example. On the government’s understanding of religious
liberty, a Jewish restaurant operating for profit could be denied
the right to observe Kosher dietary restrictions. That cannot be
right. There is nothing inherently incompatible between reli-
gious exercise and profit-seeking. The better reading of the
concluding dictum in Lee is that it foreshadowed the coming
holding in Smith eight years later. The references to “incidental
burdens” and “statutory schemes binding on others” suggest
as much.
In short, nothing in the Supreme Court’s free-exercise
jurisprudence prior to Smith categorically forecloses RFRA
claims by profit-seeking entities.
* * *
52 Nos. 12-3841 & 13-1077
For the sake of completeness, we note as well that nothing
in the Court’s general jurisprudence of corporate constitutional
rights suggests a nonprofit limitation on organizational free-
exercise rights. Prior to Smith, and continuing to the present
day, the Court has held that corporations may claim some but
not all constitutional rights. See Darrell A. H. Miller, Guns, Inc.:
Citizens United, McDonald, and the Future of Corporate Constitu-
tional Rights, 86 N.Y.U. L. REV . 887, 908–11 (2011) (collecting
cases).
For example, long before Citizens United reinvigorated the
political-speech rights of corporations, see Citizens United v.
FEC, 558 U.S. 310 (2010), the Court confirmed that corporations
have free-speech rights, see, e.g., Bd. of Trs. of the State Univ. of
N.Y. v. Fox, 492 U.S. 469 (1989); Pac. Gas & Elec. Co. v. Pub. Utils.
Comm’n of Cal., 475 U.S. 1, 8 (1986) (plurality opinion); Central
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S.
557 (1980); First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 776
(1978); N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). Prior to
Smith the Court held that the Fourth Amendment protected
corporations from unreasonable searches and seizures. See
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920);
Hale v. Henkel, 201 U.S. 43, 76 (1906), overruled on other grounds
by Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52(1964). Corporations qualify as persons for at least some
purposes under the Due Process and Equal Protection Clauses
of the Fourteenth Amendment. See Grosjean v. Am. Press Co.,
297 U.S. 233, 244 (1936); Covington & Lexington Tpk. Rd. Co. v.
Sandford, 164 U.S. 578, 592 (1896). But see Nw. Nat’l Life Ins. Co.
v. Riggs, 203 U.S. 243, 255 (1906) (“The liberty referred to in
Nos. 12-3841 & 13-1077 53
th[e] [Fourteenth] Amendment is the liberty of natural, not
artificial, persons.”). On the other hand, prior to Smith the
Court excluded corporations from the Fifth Amendment
privilege against self-incrimination, see Wilson v. United States,
221 U.S. 361, 383–84 (1911), and the emerging right of privacy,
see United States v. Morton Salt Co., 338 U.S. 632, 652 (1950).
These cases do not yield a unifying theory of corporate
constitutional rights, but Bellotti contains some language that
might be read to suggest a general decisional approach:
“Certain ‘purely personal’ guarantees, such as the privilege
against compulsory self-incrimination, are unavailable to
corporations and other organizations because the ‘historic
function’ of the particular guarantee has been limited to the
protection of individuals.” 435 U.S. at 778 n.14 (quoting United
States v. White, 322 U.S. 694, 698–701 (1944)). And this: “Wheth-
er or not a particular guarantee is ‘purely personal’ or is
unavailable to corporations for some other reason depends
upon the nature, history, and purpose of the particular
constitutional provision.” Id. But the Court has never elabo-
rated.
Ultimately, we don’t need to parse the cases on corporate
constitutional rights too finely. We are confronted here with a
question of statutory interpretation. Our task is to determine
whether prior to Smith it was established that a closely held,
for-profit corporation could not assert a free-exercise claim. It
was not so established. We conclude that K & L Contractors
54 Nos. 12-3841 & 13-1077
and Grote Industries are “persons” within the meaning of
RFRA.17
2. Substantial Burden
Our next question is whether the contraception mandate
substantially burdens the plaintiffs’ exercise of religion. Recall
that “exercise of religion” means “any exercise of religion,
whether or not compelled by, or central to, a system of religious
belief.” 42 U.S.C. § 2000cc-5(7)(A) (emphases added). At a
minimum, a substantial burden exists when the government
compels a religious person to “perform acts undeniably at
odds with fundamental tenets of [his] religious beliefs.” Yoder,
406 U.S. at 218. But a burden on religious exercise also arises
when the government “put[s] substantial pressure on an
adherent to modify his behavior and to violate his beliefs.”
Thomas, 450 U.S. at 718; see also Nelson v. Miller, 570 F.3d 868,
878 (7th Cir. 2009); Koger v. Bryan, 523 F.3d 789, 799 (7th Cir.
2008). Construing the parallel provision in RLUIPA, we have
held that a law, regulation, or other governmental command
17
We deal here with two corporations that are both closely held and
managed by the families that own them. As we have explained, the Kortes
and Grotes as controlling shareholders and directors set all company policy
and personally direct the activities of their corporations; as such, they are
in a position to operate their businesses in a manner that conforms to their
religious commitments. The same normally will not be the case when it
comes to large publicly traded corporations, two hallmarks of which are the
separation of ownership from control and multimember boards of directors.
See 1A W ILLIA M M EA D E F LETC H ER , F LETC H ER C YC LO PED IA O F TH E L AW O F
C O RPO RATIO N S § 70.10 (2006 rev.).
Nos. 12-3841 & 13-1077 55
substantially burdens religious exercise if it “bears direct,
primary, and fundamental responsibility for rendering [a]
religious exercise … effectively impracticable.” Civil Liberties for
Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.
2003). The same understanding applies to RFRA claims.
Importantly, the substantial-burden inquiry does not invite
the court to determine the centrality of the religious practice to
the adherent’s faith; RFRA is explicit about that. And free-
exercise doctrine makes it clear that the test for substantial
burden does not ask whether the claimant has correctly
interpreted his religious obligations. See Lee, 455 U.S. at 257;
Thomas, 450 U.S. at 715–16. Indeed, that inquiry is prohibited.
“[I]n this sensitive area, it is not within the judicial function
and judicial competence to inquire whether the [adherent
has] … correctly perceived the commands of [his] … faith.
Courts are not arbiters of scriptural interpretation.” Thomas,
450 U.S. at 716. It is enough that the claimant has an “honest
conviction” that what the government is requiring, prohibiting,
or pressuring him to do conflicts with his religion. Id.; see also
id. at 715 (“Thomas drew a [religious] line, and it is not for us
to say that the line he drew was an unreasonable one.”).
Checking for sincerity and religiosity is important to weed
out sham claims. The religious objection must be both sincere
and religious in nature. Cf. United States v. Seeger, 380 U.S. 163,
184–86 (1965) (military-conscription exemption applies only to
objections based on sincerely held religious beliefs as opposed
to philosophical views or a personal moral code). These are
factual inquiries within the court’s authority and competence.
But we agree with our colleagues in the Tenth Circuit that the
56 Nos. 12-3841 & 13-1077
substantial-burden test under RFRA focuses primarily on the
“intensity of the coercion applied by the government to act
contrary to [religious] beliefs.” Hobby Lobby, 723 F.3d at 1137.
Put another way, the substantial-burden inquiry evaluates the
coercive effect of the governmental pressure on the adherent’s
religious practice and steers well clear of deciding religious
questions.
On this understanding of substantial burden, there can be
little doubt that the contraception mandate imposes a substan-
tial burden on the plaintiffs’ religious exercise. K & L Contrac-
tors and Grote Industries must pay $100 per day per employee
if they do not include coverage for contraception and steriliza-
tion in their employee health-care plans. The Kortes and the
Grotes as corporate owners and managers must arrange for
their companies to provide the mandated coverage. They
object on religious grounds to doing so, explaining that
providing this coverage would make them complicit in a grave
moral wrong and would undermine their ability to give
witness to the moral teachings of their church. No one ques-
tions their sincerity or the religiosity of their objection.18
18
The Catholic Church’s teaching on the sanctity of human life and the
moral wrongfulness of contraception, abortion-inducing drugs, and sterili-
zation is well docum ented, as is its doctrine of moral complicity and the
requirements of Christian witness. See Pope John Paul II, Evangelium Vitae
[The Gospel of Life] ¶¶ 58–62 (1995), available at http://www.vatican.va/
holy_father/john_paul_ii/encyclicals/documents/hf_jp-ii_enc_25031995_
evangeliumvitae_en.html; C ATEC H ISM O F TH E C ATH O LIC C H U RC H ¶¶ 2258,
2270–75, 2284–87, 2366, 2370, 2399 (2d ed. 1997); Pontifical Council for
Justice and Peace, Compendium of the Social Doctrine of the Church ¶¶ 62–64,
(continued...)
Nos. 12-3841 & 13-1077 57
In short, the federal government has placed enormous
pressure on the plaintiffs to violate their religious beliefs and
conform to its regulatory mandate. Refusing to comply means
ruinous fines, essentially forcing the Kortes and Grotes to
choose between saving their companies and following the
moral teachings of their faith. This is at least as direct and
substantial a burden as the denial of unemployment compensa-
tion benefits in Sherbert and Thomas, and the obligation to
withhold and pay Social Security taxes in Lee.
The government takes a different tack on this question,
arguing that the mandate’s burden on religious exercise is
insubstantial because an employee’s decision to use her
insurance coverage to purchase contraception or sterilization
services “cannot be attributed to” the Kortes or Grotes. In a
different twist on the same argument, the government also
insists that any burden on the plaintiffs’ religious exercise is
too “attenuated” to count as “substantial” because the provi-
sion of contraception coverage is several steps removed from
an employee’s independent decision to use contraception. For
support the government relies on Zelman v. Simmons-Harris,
536 U.S. 639 (2002), and Board of Regents of the University of
Wisconsin System v. Southworth, 529 U.S. 217 (2000). Neither
case is relevant here.
18
(...continued)
66–68, 230–33 (2005), available at www.vatican.va/roman_curia/pontifical_
councils/justpeace/documents/rc_pc_justpeace_doc_20060526_compendio-
dott-soc_en.html.
58 Nos. 12-3841 & 13-1077
Zelman upheld Ohio’s school-voucher program against an
Establishment Clause challenge because the public funds
flowed to religious schools only through the private choice of
the students’ parents. 536 U.S. at 651–52. Southworth rejected a
free-speech challenge to a public university’s student-activity
fee because the funds collected were allocated to student
groups on a viewpoint-neutral basis, removing “ ‘any mistaken
impression that the [student groups] speak for the
[u]niversity’ ” or the objecting student. 529 U.S. at 233 (quoting
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 841
(1993)). These cases raised questions about governmental
endorsement of religion (Zelman) and unwanted speech
(Southworth). The degree of separation between the govern-
ment and the use of the funds was important to the constitu-
tional analysis in each case, but it’s not a relevant consideration
here.19
Aside from its misplaced reliance on Zelman and
Southworth, the government’s insistence that the burden is
trivial or nonexistent simply misses the point of this religious-
19
At oral argument the government suggested for the first time that grant-
ing a preliminary injunction against the contraception mandate might create
Establishment Clause concerns. That was far too late in the litigation to raise
the argument. The Supreme Court has rejected a facial Establishment
Clause challenge to RLUIPA, the parallel—albeit narrower— statutory
religious exemption applicable to the States. See Cutter v. Wilkinson, 544 U.S.
709, 720 (2005) (“[W ]e hold that § 3 of RLUIPA fits within the corridor
between the Religion Clauses: On its face, the Act qualifies as a permissible
legislative accommodation of religion that is not barred by the Establish-
m ent Clause.”). The government has not advanced an argument that
applying RFRA in this context violates the Establishment Clause.
Nos. 12-3841 & 13-1077 59
liberty claim. The government focuses on the wrong thing—the
employee’s use of contraception—and addresses the wrong
question—how many steps separate the employer’s act of
paying for contraception coverage and an employee’s decision
to use it.
To the first point: Although the plaintiffs object on religious
grounds to the use of contraception, abortifacient drugs, and
sterilization, it goes without saying that they may neither
inquire about nor interfere with the private choices of their
employees on these subjects. They can and do, however, object
to being forced to provide insurance coverage for these drugs
and services in violation of their faith. As we explained in our
order granting an injunction pending appeal, “[t]he religious-
liberty violation at issue here inheres in the coerced coverage of
contraception, abortifacients, sterilization, and related services,
not—or perhaps more precisely, not only—in the later purchase
or use of contraception or related services.” Korte, 2012 WL
6757353, at *3.
The government’s “attenuation” argument posits that the
mandate is too loosely connected to the use of contraception to
be a substantial burden on religious exercise. Because several
independent decisions separate the employer’s act of providing
the mandated coverage from an employee’s eventual use of
contraception, any complicity problem is insignificant or
nonexistent. This argument purports to resolve the religious
question underlying these cases: Does providing this coverage
impermissibly assist the commission of a wrongful act in
violation of the moral doctrines of the Catholic Church? No
civil authority can decide that question.
60 Nos. 12-3841 & 13-1077
To repeat, the judicial duty to decide substantial-burden
questions under RFRA does not permit the court to resolve
religious questions or decide whether the claimant’s under-
standing of his faith is mistaken. Lee, 455 U.S. at 257; Thomas,
450 U.S. at 715–16. The question for us is not whether compli-
ance with the contraception mandate can be reconciled with
the teachings of the Catholic Church. That’s a question of
religious conscience for the Kortes and the Grotes to decide.
They have concluded that their legal and religious obligations
are incompatible: The contraception mandate forces them to do
what their religion tells them they must not do. That qualifies
as a substantial burden on religious exercise, properly under-
stood.
The plaintiffs have established a prima facie case under
RFRA. The government must justify the mandate under the
compelling-interest test.
3. Compelling-Interest Test
RFRA requires the government to shoulder the burden of
demonstrating that applying the contraception mandate “is the
least restrictive means of furthering [a] compelling governmen-
tal interest.” 42 U.S.C. § 2000bb-1(b). The Supreme Court has
instructed us to look beyond “broadly formulated interests
justifying the general applicability of government mandates”
and “scrutinize[] the asserted harm of granting specific
exemptions to particular religious claimants.” O Centro Espirita,
546 U.S. at 431. In other words, under RFRA’s version of strict
scrutiny, the government must establish a compelling and
specific justification for burdening these claimants.
Nos. 12-3841 & 13-1077 61
The compelling-interest test generally requires a “high
degree of necessity.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct.
2729, 2741 (2011). The government must “identify an ‘actual
problem’ in need of solving, and the curtailment of [the right]
must be actually necessary to the solution.” Id. at 2738 (cita-
tions omitted). In the free-exercise context, “only those inter-
ests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion.”
Yoder, 406 U.S. at 215. “[I]n this highly sensitive constitutional
area, only the gravest abuses, endangering paramount inter-
ests, give occasion for permissible limitation … .” Sherbert,
374 U.S. at 406 (internal quotation marks and alteration
omitted). The regulated conduct must “pose[] some substantial
threat to public safety, peace[,] or order.” Id. at 403. Finally, “a
law cannot be regarded as protecting an interest of the highest
order … when it leaves appreciable damage to that supposedly
vital interest unprohibited.” Lukumi, 508 U.S. at 547 (internal
quotation marks omitted).
The government identifies two public interests—“public
health” and “gender equality”—and argues that the contracep-
tion mandate furthers these interests by reducing unintended
pregnancies, achieving greater parity in health-care costs, and
promoting the autonomy of women both economically and in
their reproductive capacities. This argument seriously misun-
derstands strict scrutiny. By stating the public interests so
generally, the government guarantees that the mandate will
flunk the test. Strict scrutiny requires a substantial congru-
ity—a close “fit”—between the governmental interest and the
means chosen to further that interest. Stating the governmental
interests at such a high level of generality makes it impossible
62 Nos. 12-3841 & 13-1077
to show that the mandate is the least restrictive means of
furthering them. There are many ways to promote public
health and gender equality, almost all of them less burdensome
on religious liberty.
We will translate a bit. The apparent aim of the mandate is
to broaden access to free contraception and sterilization so that
women might achieve greater control over their reproductive
health. We accept this as a legitimate governmental interest.
Whether it qualifies as an interest of surpassing importance is
both contestable and contested.
In Lee the Supreme Court held that the sound financial
administration of the Social Security system was a sufficiently
compelling interest to override a religious objection to with-
holding Social Security taxes. 455 U.S. at 260. The government
has not explained why free contraception deserves to be
ranked as a governmental interest akin to the Social Security
system in order of importance to the public good. Let’s assume
for the sake of argument that it is. Even with that generous
assist, the government has not come close to carrying its
burden of demonstrating that it cannot achieve its policy goals
in ways less damaging to religious-exercise rights.
Indeed, the government has not even tried to satisfy the
least-restrictive-means component of strict scrutiny, perhaps
because it is nearly impossible to do so here. The regulatory
scheme grandfathers, exempts, or “accommodates” several
categories of employers from the contraception mandate and
does not apply to others (those with fewer than 50 employees).
Since the government grants so many exceptions already, it can
Nos. 12-3841 & 13-1077 63
hardly argue against exempting these plaintiffs.20 Moreover,
there are many ways to increase access to free contraception
without doing damage to the religious-liberty rights of
conscientious objectors. The plaintiffs have identified a few:
The government can provide a “public option” for contracep-
tion insurance; it can give tax incentives to contraception
suppliers to provide these medications and services at no cost
to consumers; it can give tax incentives to consumers of
contraception and sterilization services. No doubt there are
other options.
The government has no real response to this argument. It
has not made any effort to explain how the contraception
mandate is the least restrictive means of furthering its stated
goals of promoting public health and gender equality. We
noted this shortcoming in our orders granting injunctions
pending appeal. See Grote, 708 F.3d at 855; Korte, 2012 WL
6757353, at *4. In light of this observation, we might have
expected a better effort in the government’s merits briefing. We
did not get it. The best the government could do was to insist
that the least-restrictive-means test “has never been interpreted
to require the government to subsidize private religious
practices.”
That’s just an evasion of RFRA. Lifting a regulatory burden
is not necessarily a subsidy, and it’s not a subsidy here. The
plaintiffs are not asking the government to pay for anything.
20
In contrast, in Lee the Social Security exemption for self-employed reli-
gious persons was extremely narrow. See United States v. Lee, 455 U.S. 252,
255–56 (1982).
64 Nos. 12-3841 & 13-1077
They are asking for relief from a regulatory mandate that
coerces them to pay for something—insurance coverage for
contraception—on the sincere conviction that doing so violates
their religion. They have made a strong case that RFRA entitles
them to that relief.
Our conclusion aligns us with the Tenth Circuit majority
and Judge Jordan in dissent in the Third Circuit, Hobby Lobby,
723 F.3d at 1137–44; Conestoga Wood Specialties, 724 F.3d at
407–15 (Jordan, J., dissenting), and in some respects with the
majority opinion in the D.C. Circuit, Gilardi, 2013 WL 5854246,
at *7–15. The Third Circuit analyzed the identical issues very
differently, concluding that “a for-profit, secular corporation
cannot engage in the exercise of religion,” and its owners “do
not have viable claims” against the contraception mandate
because the mandate “does not actually require [them] to do
anything.” Conestoga Wood Specialties, 724 F.3d at 388–89. The
Sixth Circuit reached a similar conclusion. Autocam, 730 F.3d at
624 (“The decision to comply with the mandate falls on
Autocam, not the Kennedys.”); id. at 627 (“Congress did not
intend the term ‘person’ to cover entities like Autocam when
it enacted RFRA.”). For reasons that should be obvious by
now, we respectfully disagree.
III. Conclusion
For the foregoing reasons, we REVERSE and REMAND with
instructions to enter preliminary injunctions barring enforce-
ment of the contraception mandate against the plaintiffs.
Nos. 12-3841 & 13-1077 65
ROVNER, Circuit Judge, dissenting. The court’s holding in
these cases is as remarkable for its reasoning as for its result.
The Kortes and the Grotes are business owners: Korte &
Luitjohan Contractors is a construction firm, and Grote
Industries manufactures motor vehicle turn signals, reflectors,
emergency lighting, and other safety systems. Neither com-
pany has a declared religious purpose or mission. Both are
subject to the full range of regulatory demands and constraints
that government imposes on all such businesses. These include
the Affordable Care Act’s (ACA’s) requirement that employers
provide comprehensive health insurance to their employees
that includes fully subsidized access to contraceptive care for
women who choose to use it. The Kortes and the Grotes are
Catholic and, consistent with the teachings of their religion,
view the use of contraceptives as immoral. Invoking the
Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-
1 (“RFRA”), they object to the contraception mandate of the
ACA as a substantial burden on their right to the free exercise
of religion.
In exempting (preliminarily) the two corporations from the
contraception mandate, the court equates the business activi-
ties of these secular, for-profit firms with the religious exercise
of its owners. Because the Kortes and the Grotes declare that
they run the corporations in a manner consistent with their
religious beliefs, the court views the burdens that government
imposes on the corporations and the company health plans as
burdens on the religious consciences and exercise of the
individual owners. Not only that: the court attributes to the
corporations religious exercise rights of their own, rights that
the companies themselves can assert, as informed by the
66 Nos. 12-3841 & 13-1077
religious beliefs of their owners. Because the Kortes and the
Grotes oppose the use of contraception, the companies’
obligation to include contraceptive coverage in their workplace
health insurance plans is understood as a burden on the
owners’ free exercise rights and in turn on the companies’ free
exercise rights. The court declares off-limits any inquiry into
the nature and degree of the burden imposed on these rights;
instead, rewriting both the terms of RFRA and free exercise
clause jurisprudence, the court declares it sufficient that the
ACA compels the two corporations to comply with a require-
ment to which its owners object on religious grounds. Thus
reasoning that the contraceptive mandate substantially
burdens the free exercise rights of the individuals and their
companies, the court then subjects the mandate to strict
scrutiny and concludes that it fails that demanding standard.
So it is that, in the name of free exercise of religion, the
court has relieved two secular corporations from a statutory
obligation to provide health insurance to their employees that
includes coverage of contraceptive care for the companies’
female employees. Realistically, the only religious interests at
stake are those of the corporations’ owners—their faith is the
source of the objection to contraception. Yet the Affordable
Care Act in no way imposes on their beliefs, their worship
activities, or the conduct of their personal lives. They need not
use, endorse, or dispense contraception; they remain free to
speak out against the use of contraception whenever and
wherever they wish. In short, their own exercise of religion is
wholly undisturbed. It is the corporations, as employers, which
shoulder the obligations imposed by the ACA; and they need
not say or do anything with respect to contraception beyond
Nos. 12-3841 & 13-1077 67
including it among the countless other medical goods and
services covered by their employee health plans. The plaintiffs
nonetheless object to this as facilitating the use of contracep-
tion. I would characterize it as facilitating an employee’s choice
to use contraception. An employee’s choice may be inconsis-
tent with the owners’ religious beliefs, but it is not the owners’
choice, and it does not substantially burden the exercise of
their religious freedoms.
My esteemed colleagues have made the best case possible
for the notion that the contraception mandate interferes with
the plaintiffs’ free exercise rights; but I believe the court’s
holding and rationale represent an unprecedented and
unwarranted re-conception of both what the free exercise of
religion entails and what constitutes a substantial burden on
that exercise. The court extends a highly personal right to a
secular corporation, a man-made legal fiction that has no
conscience enabling belief or worship. It then deems a corpora-
tion’s duty to cover contraceptive care as an impermissible
burden on the religious rights of both the corporation and its
owners. It does so without considering the directness and
degree of the burden on the plaintiffs’ right to the free exercise
of their religion, in contravention of the plain terms of RFRA,
which proscribes only substantial burdens on that right. And
it permits the plaintiffs to invoke their free exercise rights
offensively rather than defensively, in a way that circumscribes
the rights Congress has given to employees, by permitting the
corporate employers to rewrite the terms of the statutorily-
mandated health plans they provide to their employees. As a
result, employees are left without a highly important form of
insurance coverage that Congress intended them to have.
68 Nos. 12-3841 & 13-1077
1.
In order to place today’s decision and its import in a
broader perspective, I want to begin my analysis by posing
several hypotheticals illustrating how the court’s ruling in this
case might play out in other factual scenarios. Part of our
responsibility as an appellate court is to consider the ramifica-
tions our precedents will have for other cases and litigants.
Contraception is the current focus of nationwide litigation
challenging the ACA’s employer mandate; and because the
duty to include coverage for contraceptives in employee health
plans implicates women, sexuality, and reproduction as well
as religion, one might be tempted to assume that the issues
raised in this case and the court’s holding are confined, if not
to the facts in this case, then to a narrow range of circum-
stances. But, as the court points out, RFRA applies to “all
Federal law, and the implementation of that law, whether
statutory or otherwise, and whether adopted before or after”
RFRA’s effective date. 42 U.S.C. § 2000bb-3(a); ante at 33. The
court’s holding today has the potential to reach far beyond
contraception and to invite employers to seek exemptions from
any number of federally-mandated employee benefits to which
an employer might object on religious grounds. The following
three hypotheticals are intended to show why I think this
might be so. The names and facts in these hypotheticals are of
my own invention; the legal provisions are not.
1. Tom Smith is the sole owner and chief executive officer
of TS-Co, a software company that employs more than 50
people and is therefore subject to the ACA. TS-Co sponsors a
self-insured health care plan for its employees. Joe Wilson is an
employee of TS-Co who suffers from Amyotrophic Lateral
Nos. 12-3841 & 13-1077 69
Sclerosis, or ALS, commonly known as Lou Gehrig’s Disease.
ALS is a progressive neurodegenerative disease that affects
nerve cells in the brain and spinal cord; the disease destroys
motor neurons and with them the ability of the brain to initiate
and control muscle function. Eventually, the disease leads to
total paralysis. Most people with ALS die of respiratory failure
or pneumonia, typically within three to five years of the onset
of symptoms.
From another TS-Co employee, Smith learns that Wilson
has been accepted into a clinical trial testing the effectiveness
of an embryonic stem-cell therapy on ALS. Smith is a devout
Methodist who shares the United Methodist Church’s disap-
proval of research and therapies based on stem cells derived
from human embryos. Smith does not wish to manage his
company’s benefit plan in a way that conflicts with his reli-
gious beliefs; although he is concerned for Wilson’s health, he
is adamantly opposed to facilitating the use of embryonic stem
cells in any way. He thinks it unlikely that the company health
plan will pay for the care Wilson will receive during his
participation in the clinical trial, but when he raises the issue
with the plan administrator, he learns that under section 1201
of the ACA (which in turn created a new section 2709 of the
Public Health Service Act (“PHA”)), the health plan must cover
the costs of routine patient care associated with clinical trials
involving treatments for cancer and other life-threatening
conditions. See 42 U.S.C. § 300gg-8. In this way, the ACA was
meant to expand patient access to and participation in such
70 Nos. 12-3841 & 13-1077
clinical trials.1 Although the plan would cover only the costs of
Wilson’s routine care associated with the stem cell therapy,
and not the costs of the stem cell therapy itself, Smith believes
that by covering Wilson’s routine care, the company plan
would be facilitating his participation in a practice to which he
objects on religious grounds.
Smith brings suit under RFRA a seeking declaratory and
injunctive relief relieving the company of the obligation to
comply with section 2709 of the PHA, insofar as it requires the
coverage of costs associated with clinical trials employing
embryonic stem cell therapies. Smith argues that requiring his
company’s health plan to cover the costs of any medical care
associated with a treatment to which he objects on religious
grounds interferes with his wish to run the company in a
manner consistent with his religious convictions. Based on the
court’s decision today, Smith and TS-Co would have a color-
able argument that the coverage required by section 2709
imposes a substantial burden on their free exercise rights.
Although the government might have an argument that section
2709 is supported by a compelling interest in the development
of effective therapies for life-threatening conditions such as
ALS, based on this court’s least-restrictive means analysis, a
court might conclude that the government itself, in lieu of
objecting employers, could pay for all costs associated with an
1
See American Cancer Society, Cancer Action Network, Fact Sheet:
Affordable Care Act: Clinical Trials (“Nearly 20% of cancer patients are eligible
for participation in cancer clinical trials, but enrollment among adults
consistently ranges between 3-5%.”), available at http://http://
acscan.org/pdf/healthcare/implementation/factsheets/hcr-clinical-trials.pdf
(last visited Nov. 7, 2013).
Nos. 12-3841 & 13-1077 71
individual’s participation in a clinical trial. In the meantime,
granting TS-Co an exemption from the PHA would mean that
Wilson’s workplace insurance would not cover any costs
associated with his participation in the clinical trial; and that,
as a practical matter, might render Wilson unable to participate
in the trial.
2. Bill Blasdell is the sole owner and chief executive officer
of Get Out!, a corporation which operates a small chain of three
outdoor-gear stores. Prior to enactment of the ACA, the
company did not provide health insurance to its employees;
but with 75 employees, Get Out! is now subject to the ACA’s
employer mandate. Blasdell has been a life-long member of the
Church of Christ, Scientist. Christian Science dogma postulates
that illness is an illusion or false belief that can only be ad-
dressed through prayer which realigns one’s soul with God.
Consistent with that view, Christian Science historically has
disapproved of most forms of conventional medicine. None-
theless, in practice, many Christian Scientists have availed
themselves of conventional medical treatments, and in recent
years, the church itself has become more tolerant of conven-
tional medicine. See, e.g., Paul Vitello, Christian Science Church
Seeks Truce With Modern Medicine, New York Times A20 (Mar.
24, 2010).
Earlier in his life, Blasdell was among those Christian
Scientists who embraced traditional medicine. But after
witnessing his wife suffer through a brutal treatment regimen
for breast cancer at a premier medical center, only to die as a
result of complications from the treatment and missteps by the
medical staff, Blasdell came to believe, consistent with the
teachings of his church, that conventional medicine does far
72 Nos. 12-3841 & 13-1077
more harm than good. His belief was reinforced in the year
following his wife’s death, when his ulcerative colitis went into
remission during prayer-centered treatment at a Christian
Science nursing center.
As a result of his religious convictions, Blasdell is ada-
mantly opposed to facilitating the use of conventional medical
care by his employees. He is willing for Get Out! to sponsor an
employee health plan that pays for care at Christian Science
nursing centers, but he believes that his company’s compliance
with the ACA’s mandate to cover traditional medical care
would be a violation of his religious principles.
After Get Out!’s request for an exemption from the em-
ployer mandate is denied, Blasdell and the company bring suit
under RFRA contending that the employer mandate is a
substantial burden on the free exercise of their religious beliefs.
Pursuant to the court’s decision today, both Blasdell and Get
Out! would have a colorable argument that compliance with
the employer mandate, by facilitating company employees’ use
of conventional medical treatments to which Blasdell is
opposed on religious grounds, represents a substantial burden
on his religious freedom and that of the corporation. And
although the government, again, would no doubt urge that it
has a compelling interest in pursuing universal access to
healthcare, Blasdell and his firm could invoke this court’s
decision for the argument that the ACA’s exemptions belie that
interest, and that, in any event, the government could pursue
its goal through publicly-funded healthcare, individual tax
credits, or other means that do not require employers to
subsidize employee healthcare that is inconsistent with their
own religious beliefs.
Nos. 12-3841 & 13-1077 73
3. Red Pie, Inc., sells and ships to consumers nationwide a
variety of frozen, specialty pizzas. Bill and Betty Ann Bowers
and their three children own and operate the firm, which has
over 100 full-time employees. The Bowers belong to a church
which is affiliated with the Southern Baptist Convention. The
Convention’s position on marriage and sexuality may be
summarized as follows:
We affirm God’s plan for marriage and sexual
intimacy—one man, and one woman, for life. Ho-
mosexuality is not a “valid alternative lifestyle.” The
Bible condemns it as sin. It is not, however, unfor-
givable sin. The same redemption available to all
sinners is available to homosexuals. They, too, may
become new creations in Christ.
Southern Baptist Convention, Position Statement on Sexuality,
available at http://www.sbc.net/aboutus/pssexuality.asp (last
visited Nov. 7, 2013). The Bowers’ local congregation endorses
and promotes the same view; in the past several years, the
pastor of their church has given several sermons condemning
same-sex marriage, adoption by gay and lesbian parents, and
the repeal of the military’s “Don’t Ask, Don’t Tell” policy. The
Bowers accept and follow their church’s teaching on homosex-
uality. When same-sex marriage was recently legalized in their
state as a result of a court decision, the Bowers, knowing that
they had a number of gay and lesbian individuals in their
employ and in keeping with their religious beliefs, amended
the Red Pie employee benefits plan to make clear that spousal
insurance benefits are not available to the same-sex spouses of
Red Pie employees; as their state does not prohibit employ-
ment discrimination on the basis of sexual orientation, and
74 Nos. 12-3841 & 13-1077
because the ACA does not require employers to provide
insurance coverage to employee spouses, this change was
legally permitted.
Mr. and Mrs. Bowers become alarmed when they learn that
one of their employees, Stan Jones, has submitted a request to
take three weeks of unpaid leave under the Family and
Medical Leave Act (FMLA) so that he and his husband may
attend the expected birth of their child via surrogacy in
California, bring the baby home, and bond with the child. See
29 U.S.C. § 2612(a)(1). The Bowers view the idea of two gay
men conceiving a child by surrogacy and bringing that child
into their home as an abomination to the Lord. They instruct
their office manager to deny Jones’ leave request and inform
him that neither they nor their company can in any way
recognize or facilitate such an immoral arrangement; Jones in
turn protests the denial, citing his FMLA rights. After thinking
about the matter further, they decide the Bowers are so
troubled that they can no longer keep Jones in their employ.
The next day, they fire him.
After Jones contacts the Wages and Hours Division of the
Department of Labor, the Department files suit against Red Pie
under the FMLA contending that Jones was both wrongfully
denied his right to parental leave under the statute and fired in
retaliation for having requested FMLA leave. See 29 U.S.C.
§§ 2615(a)(1), 2617(b)(2). Red Pie invokes RFRA as a defense to
the Department’s suit, contending that the FMLA as applied to
Red Pie in this instance would constitute a substantial burden
on the free exercise rights of the corporation and its owners, as
it would force them either to recognize and facilitate a parental
arrangement they view as sinful or suffer substantial penalties
Nos. 12-3841 & 13-1077 75
under the FMLA for refusing to do so.2 The leave mandated by
the FMLA is, of course, unpaid, and to that extent it would
arguably constitute no more than a minimal burden on Red
Pie’s asserted free exercise rights;3 but Red Pie could readily
invoke this court’s decision for the proposition that the
substantiality of the burden turns not on the degree of interfer-
ence imposed on the company’s religious exercise but rather
2
Whether RFRA may be invoked as a defense in a suit between private
individuals is a developing issue which has produced a split among the
circuits. Compare Hankins v. Lyght, 441 F.3d 96, 103–04 (2d Cir. 2006) (2–1
decision) (holding that RFRA may be invoked in such a suit), with id. at
114–15 (Sotomayor, J., dissenting); Gen. Conference Corp. of Seventh-Day
Adventists v. McGill, 617 F.3d 402, 410–12 (6th Cir. 2010); Tomic v. Catholic
Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006), abrogated on other
grounds by Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132
S. Ct. 694, 709 n.4 (2012); and Sutton v. Providence St. Joseph Med. Ctr., 192
F.3d 826, 834, 837–43 (9th Cir. 1999) (all holding that RFRA may not be
invoked in such a suit). There is no doubt, however, that RFRA may be
invoked as a defense in litigation with the government. See 42 U.S.C.
§ 2000bb-1(c) (“A person whose religious exercise has been burdened in
violation of this section may assert that violation as a claim or defense in a
judicial proceeding and obtain appropriate relief against a government.”);
Tomic, 442 F.3d at 1042.
3
This is not to say that an employer incurs no costs as a result of the leave.
Although FMLA leave is unpaid, an employer is required to continue
providing health coverage to the absent employee on the same terms and
conditions that would apply if he were still working, 29 U.S.C. § 2614(a)(2),
and of course, the employer must bear the cost of having someone else fill
in for the employee on leave even as he holds a position open for the
employee in anticipation of his return from leave, § 2614(a)(1). In both
respects, the employer lends considerable assistance to the employee taking
leave.
76 Nos. 12-3841 & 13-1077
solely on the coercive nature of the FMLA—compliance with
which is mandatory on pain of litigation and significant
penalties for the failure to do so. Ante at 56–57; see 26 U.S.C.
§§ 4980D(a) & (b)(1), 4980H(a) & (c).
The Department of Labor potentially might fair better at the
next, strict-scrutiny phase of the analysis. Certainly, in terms of
the least restrictive means of supporting and promoting
families, the Department would have a strong argument that
there is no substitute for granting leave time to parents at
critical times when their presence is most needed by their
children. But that point aside, would a court deem the interests
underlying the FMLA sufficiently compelling to constitute
“interests of the highest order,” Wisconsin v. Yoder, 406 U.S.
205, 215 , 92 S. Ct. 1526, 1533 (1972), or “paramount interest[s]”
jeopardized by “the gravest abuses,” Sherbert v. Verner, 374 U.S.
398, 406, 83 S. Ct. 1790, 1795 (1963), such that Jones’ rights
under the FMLA would trump the asserted religious interests
of the corporation? And, in considering whether the govern-
ment has “establish[ed] a compelling and specific justification
for burdening these claimants,” ante at 60 (emphasis in origi-
nal), would a court assess the strength of the government’s
interest in promoting familial relationships generally, or its
interest in promoting the bonds between same-sex parents and
their children, as that is the interest which Red Pie contends is
irreconcilable with its religious interests? And if the latter,
would that more specific interest qualify as a compelling
interest? The outcome of that analysis is far from clear to me
under today’s precedent.
These hypotheticals illustrate the uncertainty that the
court’s expansive interpretation and application of RFRA
Nos. 12-3841 & 13-1077 77
brings to a number of statutory schemes in which Congress has
accorded specific rights to employees (not to mention other
parties), the recognition and accommodation of which a
corporation, in addition to its owners, can now say burden
their religious interests. By casting the mandatory provision of
benefits to an employee as a substantial burden on the free
exercise rights of a closely-held corporation and its owners,
without considering whether compliance with the mandate
directly interferes with the free exercise of religion or is at most
a modest burden on a plaintiff’s free exercise rights, the court’s
rationale subjects a potentially wide range of statutory pro-
tections to strict scrutiny, one of the most demanding stan-
dards known in our legal system. In some ways, this is
reminiscent of the Lochner era, when an employer could claim
that the extension of statutory protections to its workers
constituted an undue infringement on the freedom of contract
and the right to operate a private, lawful business as the owner
wished. And by exempting employers from extending to
employees the rights specified by statute, the government is
forced to pick up the slack and take compensatory action to
protect the rights of those employees; short of that, the em-
ployee of the religiously-motivated employer is left with no
right at all. I doubt that this is what Congress intended when
it enacted RFRA.
2.
I begin my discussion of the specific legal points presented
by this appeal with where my colleagues and I agree. First, I
agree that the Anti-Injunction Act poses no bar to this action.
This is not a suit aimed at restraining the collection of a tax—in
this case, the penalties for non-compliance with the ACA.
78 Nos. 12-3841 & 13-1077
Rather, it is a direct challenge to a substantive provision of the
ACA: the contraception mandate.
I am also in accord with my colleagues on standing. The
government has not contested the standing of any of the
plaintiffs in these cases, and I agree with my colleagues that
both the corporations and their owners indeed do have
standing. Because the burden of the contraception mandate
falls directly on the two corporations as employers, and
because the corporations contend that they have their own
right to free exercise of religion which is burdened by the
mandate, they have standing to challenge the mandate. See
generally Clapper v. Amnesty Int’l U.S.A., 133 S. Ct. 1138, 1147
(2013). And the Kortes and the Grotes, who as the owners of
these closely-held corporations assert that they express their
religious beliefs in the way in which they run these corpora-
tions, have standing to assert that their own free exercise rights
are burdened by the contraception mandate notwithstanding
the general rule against shareholder standing. See Franchise Tax
Bd. v. Alcan Aluminium Ltd., 493 U.S. 331, 336, 110 S. Ct. 661,
665 (1990) (exception to shareholder standing rule “allow[s] a
shareholder with a direct, personal interest in a cause of action
to bring suit even if the corporation’s rights are also impli-
cated”); see also Gilardi v. U.S. Dep’t of Health & Human Servs.,
2013 WL 5854246, at *6–*7 (D.C. Cir. Nov. 1, 2013) (op of
Brown, J.); id. at *19–*22 (Edwards, J., concurring in part &
dissenting in part).
This is not to say that I believe that the respective interests
of the corporations and their owners are congruent. The fact
that the obligations imposed by the mandate fall upon the
corporation, whereas it is the individual owners—and only the
Nos. 12-3841 & 13-1077 79
individuals, in my view—who hold free exercise rights,
matters a great deal to whether those rights are substantially
burdened. But that is a point that goes to the merits of this
lawsuit rather than the standing of either set of plaintiffs, as the
court points out. Ante at 22 n.9; see also Gilardi, 2013 WL
5854246, at *19 (Edwards, J., concurring in part & dissenting in
part). And that is why, as I proceed to explain, the plain-
tiffs—both corporate and individual—are unlikely to prevail
on the merits of their RFRA claim.
3.
I turn first to the free exercise rights of the corporations.
One premise underlying the RFRA claims advanced in these
cases is that the interests, rights, and obligations of a closely-
held corporation are identical to those of their owners. In fact,
as I have argued previously, they are distinct. In electing to do
business through the corporate form, the Kortes and the Grotes
have separated themselves from their companies: the corpora-
tions are independent legal entities with legal rights and
obligations independent of their individual owners. Grote v.
Sebelius, 708 F.3d 850, 857 (7th Cir. 2013) (dissent). That is the
point of incorporation: to create a separate legal person to
shoulder some of the burdens of the business. See Cedric
Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163, 121 S. Ct.
2087, 2091 (2001) (“[I]ncorporation’s basic purpose is to create
a distinct legal entity, with legal rights, obligations, powers,
and privileges different from those of the natural individuals
who created it, who own it, or whom it employs.”); see also
Autocam Corp. v. Sebelius, 730 F.3d 618, 623–24 (6th Cir. 2013),
pet’n for cert. filed (U.S. Oct. 15, 2013) (No. 13-482); Conestoga
Wood Specialties Corp. v. Sec’y U.S. Dep’t of Health & Human
80 Nos. 12-3841 & 13-1077
Servs., 724 F.3d 377, 387–88 (3d Cir. 2013), pet’n for cert. filed, 82
U.S.L.W. 3139 (U.S. Sep. 19, 1993) (No. 13-356). What that
means here is that it is the two corporations which, as employ-
ers covered by the ACA, must provide health insurance to
their employees that covers contraceptives. That, in turn, puts
meaningful distance between the Kortes and the Grotes and
the company health plans and undercuts the notion that the
ACA forces the Kortes and the Grotes to facilitate a prac-
tice—the use of contraception—to which they object on
religious grounds.
The distinction between a corporation and its owners
explains why the plaintiffs have argued, and today the court
holds, that a secular, for-profit corporation possesses its own
right to the free exercise of religion. That novel idea is a way to
get past the problem that the people whose faith leads them to
object to the contraception mandate are not legally responsible
for complying with the mandate: endow the corporate
“persons” with their own right to exercise religion which they
may invoke in conscientious objection to the mandate. It is an
unprecedented holding, and one I believe is without legal or
logical support.
I concede, as I must, that the Supreme Court has not
restricted the invocation of free exercise rights solely to
individuals, but has allowed—albeit with very little discus-
sion—houses of worship, including those which have incorpo-
rated, to assert such rights. See ante at 38, citing Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 126 S.
Ct. 1211 (2006), and Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 113 S. Ct. 2217 (1993); see also Gilardi,
2013 WL 5854246, at *4 (op. of Brown, J.) (coll. cases); cf. Harris
Nos. 12-3841 & 13-1077 81
v. McRae, 448 U.S. 297, 321, 100 S. Ct. 2671, 2690 (1980) (noting
that a free exercise claim is “one that ordinarily requires
individual participation”).4 Permitting a religious organization,
incorporated or not, to invoke the Free Exercise Clause makes
sense as a matter of pragmatism if not legal theory. A religious
association is often as well if not better situated as the individ-
uals who make up the association to assert the relevant
religious interests: the association can speak on behalf of all of
its members; it likely has resources to pursue legal relief that
individual members do not; it can speak authoritatively on
matters of religious dogma; it may be the association that owns
property and other assets affected by the challenged govern-
ment action; and in many instances, the law or other govern-
ment action being challenged intrudes directly on the collective
worship activities of the association itself. E.g., Church of the
Lukumi Babalu Aye, 508 U.S. at 534–35, 113 S. Ct. at 2227–28
(challenged ordinances restricted practices which were central
to worship service); see also Primera Iglesia Bautista Hispana of
Boca Raton, Inc. v. Broward Cnty., 450 F.3d 1295, 1304 (11th Cir.
2006) (incorporated church had standing to assert, inter alia,
4
Of the cases cited by this court and by the District of Columbia Circuit in
Gilardi, only Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 105
S. Ct. 1953 (1985), actually says anything about standing. In a footnote, the
Court in Alamo Found. said simply, “The Foundation also has standing to
raise the free exercise claims of the associates, who are members of the
religious organization as well as employees under the Act.” Id. at 303 n.26,
105 S. Ct. 1962 n. 26. The Court was thus plainly relying on the doctrine of
associational standing rather than on any notion that the Foundation
possessed independent free exercise rights. The Court’s citation to
N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 458–59, 78 S. Ct. 1163,
1169–70 (1958), removes any doubt in that regard.
82 Nos. 12-3841 & 13-1077
free exercise clause challenge to local zoning ordinance which
interfered with church’s relocation); In re Young, 82 F.3d 1407,
1416 (8th Cir. 1996) (church had standing to assert free exercise
rights of debtors in challenge to bankruptcy court order which
directed church to return funds debtors had donated to church
prior to declaring bankruptcy; debtors were not party to
adversary proceeding seeking return of funds and could not
assert their free exercise rights in another forum, and interests
of church and its members were sufficiently similar that church
could effectively represent their free exercise rights), judgment
vacated & remanded on other grounds, 521 U.S. 1114, 117 S. Ct.
2502 (1997), judgment reinstated, 141 F.3d 854 (8th Cir. 1998);
Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518,
521–23 (9th Cir. 1989) (church had standing to pursue free
exercise challenge to government surveillance of its member-
ship); Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193, 199
(5th Cir. 1984) (incorporated church had personal stake in free
exercise challenge to statute proscribing possession and use of
peyote, “because enforcement of that statute will directly affect
the freedom with which its members may fulfill their professed
religious commitment”); Church of Scientology of California v.
Cazares, 638 F.2d 1272, 1279–80 (11th Cir. 1981) (church had
standing to assert free exercise rights of its membership in civil
rights suit alleging town mayor had unlawfully harassed
church and its members).
Still, although a religious organization enjoys associational
standing to represent the free exercise rights of its members, see
United Food & Commercial Works Union Local 751 v. Brown
Group, Inc., 517 U.S. 544, 551–53, 116 S. Ct. 1529, 1534 (1996);
Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333,
Nos. 12-3841 & 13-1077 83
342–44, 97 S. Ct. 2434, 2441–42 (1977); Warth v. Seldon, 422 U.S.
490, 511, 95 S. Ct. 2197, 2211 (1975), I question whether it has
free exercise rights of its own. Would a defunct church that no
longer has any members but still owns property and other
assets be able to claim free exercise rights in its own right, for
example? The Supreme Court, while allowing incorporated
religious bodies to assert free exercise rights, has yet to fully
explain why, let alone delineate what types of corporations, if
any, can independently assert free exercise rights. There are
reasons to doubt that a corporation, whatever its nature, has
such rights.
Not all rights that the Constitution accords to a person are
extended to corporations. The Supreme Court has recognized
that “[c]orporate identity has been determinative in several
decisions denying corporations certain constitutional rights,
such as the privilege against compulsory self-incrimination.”
First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 778 n.14, 98 S.
Ct. 1407, 1416–17 n.14 (1978). Bellotti went on to explain:
[C]ertain “purely personal” guarantees … are
unavailable to corporations and other organizations
because the “historic function” of the particular
guarantee has been limited to the protection of
individuals. United States v. White, 322 U.S. 694,
698–701, 64 S. Ct. 1248, 1251–52 (1944). Whether or
not a particular guarantee is “purely personal” or is
unavailable to corporations for some other reason
depends on the nature, history, and purpose of the
particular constitutional provision.
84 Nos. 12-3841 & 13-1077
Ibid; see also Browning-Ferris. Indus. of Vt., Inc. v. Kelco Disposal,
Inc., 492 U.S. 257, 284–85, 109 S. Ct. 2909, 2925–26 (1989).
I have been struck in reviewing the handful of decisions
granting corporations free exercise rights (and for that matter,
the plaintiffs’ briefs in this case) by how wanting they are in
articulating a substantive, affirmative explanation for why any
type of corporation, let alone a secular, for-profit corporation,
should be accorded religious rights. E.g., Hobby Lobby Stores,
Inc. v. Sebelius, 723 F.3d 1114, 1135 (10th Cir. 2013) (“[W]e
cannot see why an individual operating for-profit retains Free
Exercise protections but an individual who incorporates—even
as the sole shareholder—does not, even though he engages in
the exact same activities as before.”), pet’n for cert. filed, 82
U.S.L.W. 3139 (U.S. Sep. 19, 2013) (No. 13-354). My colleagues
see no reason to think that Congress meant to preclude such
corporations from asserting rights under RFRA, ante at 53–54,
but I think this gets things backward. Given that the Supreme
Court has never recognized that secular corporations have free
exercise rights, I think it is more accurate to say that there is no
reason to think Congress meant to take the novel step of
extending free exercise rights to such corporations when it
enacted RFRA.
Perhaps the best argument in favor of according free
exercise rights to corporations is that the right to free speech
already has been recognized as among those rights that
corporations enjoy. Citizens United v. Fed. Election Comm’n, 558
U.S. 310, 342, 130 S. Ct. 876, 899–900 (2010) (coll. cases); Bellotti,
435 U.S. at 780–81, 98 S. Ct. at 1417–18 (coll. cases). But beyond
the fact that the free exercise clause, like the free speech clause,
resides in the First Amendment, I find little, if anything, in the
Nos. 12-3841 & 13-1077 85
speech cases that speaks to the nature of religion and why
corporations, as a matter of history and logic, should be able to
assert free exercise rights. See Conestoga Wood Specialties, 724
F.3d at 386 (noting distinct treatment of free speech and free
exercise clauses in Supreme Court jurisprudence); Gilardi, 2013
WL 5854246, at *5 (op. of Brown, J.); Autocam, 730 F.3d at
627–28. Corporations, because they have property, financial,
and political interests, of course have a free speech interest in
protecting and promoting those interests and in pursuing their
agendas, be their stated goals charitable, religious, political, or
profit-making. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n of N.Y., 447 U.S. 557, 561–62, 100 S. Ct. 2343, 2349
(1980) (commercial speech); Riley v. Nat’l Fed. of the Blind of
N.C., Inc., 487 U.S. 781, 787–89, 108 S. Ct. 2667, 2672–73 (1988)
(charitable solicitation); Watchtower Bible & Tract Soc’y of N.Y.,
Inc. v. Vill. of Straton, 536 U.S. 150, 160–61, 122 S. Ct. 2080,
2086–87 (2002) (religious speech); Citizens United, 558 U.S. at342–43, 130 S. Ct. at 900 (political speech). Beyond those
parochial interests, Bellotti (which struck down a law prohibit-
ing a corporation from making expenditures to influence the
outcome of any public referendum other than one which
directly affected the property, business, or activities of the
corporation), stressed the core First Amendment interest in a
robust dialogue on issues of public concern, an interest which
extends beyond a particular speaker’s wish to express his
views to include the public’s right to hear his views and those
of others. 435 U.S. at 776–77, 98 S. Ct. at 1415–16. The Court
added that “[t]he inherent worth of the speech in terms of its
capacity for informing the public does not depend upon the
identity of its sources, whether corporation, association, union,
86 Nos. 12-3841 & 13-1077
or individual.” Id. at 777, 98 S. Ct. at 1416. Decisions recogniz-
ing the speech rights of corporations thus rest “not only on the
role of the First Amendment in fostering individual self-
expression but also on its role in affording the public access to
discussion, debate, and the dissemination of information and
ideas.” Id. at 783, 98 S. Ct. at 1419.
Religion, by contrast, is a personal undertaking. Conestoga
Wood Specialties, 724 F.3d at 385, 388. Certainly there is a
collective societal interest in protecting religious liberty, and
religion can and has influenced the public sphere in positive
ways. See Lynch v. Donnelly, 465 U.S. 668, 674–78, 104 S. Ct.
1355, 1360–61 (1984) (recognizing longstanding role of religion
in American life). But religious faith is, by its nature, an
intensely individual experience, and for the reasons that
follow, I believe it likely is one of those “purely personal”
constitutional rights that the Supreme Court will not extend to
corporations—certainly not to secular, for-profit corporations.
The fact that a corporation qualifies as a person under the
Dictionary Act, 1 U.S.C. § 1, see ante at 36; Hobby Lobby Stores,
723 F.3d at 1129, 1132, is by no means dispositive. RFRA
bestows its protection upon “[a] person whose religious exercise
has been burdened.” § 2000bb-1(c) (emphasis mine). Thus, “the
focus on personhood is too narrow; instead, we must construe
the term ‘person’ together with the phrase ‘exercise of reli-
gion.’” Gilardi, 2013 WL 5854246, at *2 (op. of Brown, J.); see also
Autocam, 730 F.3d at 626. In other words, we must consider
whether it is possible for a corporation to exercise religion.
The First Amendment, of course, does not define “religion.”
More than a century ago, the Supreme Court said that “[t]he
Nos. 12-3841 & 13-1077 87
term ‘religion’ has reference to one's views of his relations to
his Creator, and to the obligations they impose of reverence for
his being and character, and of obedience to his will.” Davis v.
Beason, 133 U.S. 333, 342, 10 S. Ct. 299, 300 (1890), abrogated on
other grounds by Romer v. Evans, 517 U.S. 620, 634, 116 S. Ct.
1620, 1628 (1996); see also Cnty. of Allegheny v. A.C.L.U. Greater
Pittsburgh Chapter, 492 U.S. 573, 109 S. Ct. 3086 (1989) (Stevens,
J., concurring in part & dissenting in part) (noting that
“religion” as used in establishment clause was “understood
primarily to mean ‘[v]irtue, as founded upon reverence of God,
and expectation of future rewards and punishments,’ and only
secondarily ‘[a] system of divine faith and worship as opposite
to others.’” (quoting S. Johnson, A DICTIONARY OF THE ENGLISH
LANGUAGE (7th ed. 1785)). In Fleischfresser v. Dirs. of Sch. Dist.
200, 15 F.3d 680, 688 n.5 (7th Cir. 1994), we set forth a “general
working definition of religion” for purposes of the free exercise
clause that includes “any set of beliefs addressing matters of
ultimate concern occupying a place parallel to that filled by
God in traditionally religious persons.” (quoting Welsh v.
United States, 398 U.S. 333, 340, 90 S. Ct. 1792, 1796 (1970))
(internal quotation marks and ellipsis omitted). I note that the
Second Circuit, in attempting to define the same term, invoked
the renowned philosopher, psychologist, and professor
William James, who described religion as “the feelings, acts,
and experiences of individual men in their solitude, so far as
they apprehend themselves to stand in relation to whatever
they may consider the divine.” United States v. Moon, 718 F.2d
1210, 1227 (2d Cir. 1983) (quoting Wm. James, THE VARIETIES OF
RELIGIOUS EXPERIENCE: A STUDY IN HUMAN NATURE 31 (1910));
see also Patrick v. LeFevour, 745 F.2d 153, 158 (2d Cir. 1984). Each
88 Nos. 12-3841 & 13-1077
of these definitions references an individual’s understanding
of his relationship to a divine being, a necessarily personal and
subjective viewpoint. In that regard, they are consistent with
the views of both James Madison, a drafter of the First Amend-
ment, and Thomas Jefferson, who drafted its predecessor,
Virginia’s Bill for Religious Freedom, in 1779 (the bill was
eventually adopted by the Virginia Assembly in 1786). Madi-
son, in his 1785 Memorial and Remonstrance Against Religious
Assessments, wrote that he opposed Patrick Henry’s proposed
Virginia bill to levy a tax for the support of religion on fifteen
grounds, the first of which being:
1. Because we hold it for a fundamental and undeni-
able truth, “that religion or the duty which we owe
to our Creator and the Manner of discharging it, can
be directed only by reason and conviction, not by
force or violence. The Religion then of every man
must be left to the conviction and conscience of
every man; and it is the right of every man to exer-
cise it as these may dictate. This right is in its nature
an unalienable right. It is unalienable, because the
opinions of men, depending only on the evidence
contemplated by their own minds cannot follow the
dictates of other men: It is unalienable also, because
what is here a right towards men, is a duty towards
the Creator. It is the duty of every man to render to
the Creator such homage, and such only, as he
believes to be acceptable to him. This duty is prece-
dent, both in order of time and in degree of obliga-
tion, to the claims of Civil Society. Before any man
can be considered as a member of Civil Society, he
Nos. 12-3841 & 13-1077 89
must be considered as a subject of the Governour of
the Universe: And if a member of Civil Society, who
enters into any subordinate Association, must
always do it with a reservation of his duty to the
general authority; much more must every man who
becomes a member of a particular Civil Society do it
with a saving of his allegiance to the Universal
Sovereign … .
See Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 64, 67 S. Ct.
504, 535 (1947) (App. to dissent of Rutledge, J.) (quoting 2 THE
WRITINGS OF JAMES MADISON 183-91 (Gaillard Hunt ed. 1901)),
also available at http://religiousfreedom.lib.virginia.edu/
sacred/madison_m&r_1785.html (last visited Nov. 7, 2013).
Madison’s articulation of religion as something that must be
“left to the conviction and conscience of every man” obviously
describes a highly personal experience of thought and belief.
Likewise, Jefferson, in his 1802 letter to the Danbury Baptists,
described religion in terms of individual conscience:
Believing with you that religion is a matter which
lies solely between man and his God, that he owes
account to none other for his faith or his worship,
that the legitimate powers of government reach
actions only, and not opinions, I contemplate with
sovereign reverence that act of the whole American
people which declared that their legislature should
“make no law respecting an establishment of reli-
gion, or prohibiting the free exercise thereof,” thus
building a wall of separation between church and
State. Adhering to this expression of the supreme
will of the nation in behalf of the rights of con-
90 Nos. 12-3841 & 13-1077
science, I shall see with sincere satisfaction the
progress of those sentiments which tend to restore to
man all his natural rights, convinced he has no
natural right in opposition to his social duties.
Letter from President Thomas Jefferson to Nehemiah Dodge,
et al., Danbury Baptist Association (Jan. 1, 1801), reproduced
in Braunfeld v. Brown, 366 U.S. 599, 604, 81 S. Ct. 1144, 1146
(1961) (quoting 8 WORKS OF THOMAS JEFFERSON 113 (A.
Lipscomb & A. Bergh eds. 1905)), also available at http://press-
pubs.uchicago.edu/founders/documents/amendI_
religions58.html (last visited Nov. 7, 2013).
Such remarks are consistent with the historical underpin-
nings of the free exercise clause. Neither the congressional
record underlying the enactment of the First Amendment nor
the records of the state legislatures which subsequently ratified
the amendment provide any help in ascertaining what legisla-
tors meant by “religion” and the free exercise thereof. See
Michael W. McConnell, The Origins & Historical Understanding
of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1481, 1483,
1485 (1990); Vincent Phillip Muñoz, The Original Meaning of the
Free Exercise Clause: The Evidence from the First Congress, 31
HARV. J. L. & PUB. POL. 1083 (2008). But there are two reference
points that reinforce the notion that religion was understood to
be a matter of personal conscience.
First, by 1789, the constitutions of all thirteen states, save
Connecticut, included religious liberty provisions, and many
referenced the right as the freedom to worship one’s God
according to the dictate’s of one’s conscience. See McConnell,
Origins & Historical Understanding, 103 HARV. L. REV. at 1457 n.
Nos. 12-3841 & 13-1077 91
242 (reproducing text of state provisions); City of Boerne v.
Flores, 521 U.S. 507, 553–54, 117 S. Ct. 2157, 2180 (1997)
(O’Connor, J., dissenting) (discussing examples of such
provisions). New Hampshire’s 1784 constitution, for example,
provided that “[e]very individual has a natural and unalien-
able right to worship GOD according to the dictates of his own
conscience, and reason”; and the constitutions of Delaware,
Massachusetts, New Jersey, North Carolina, Pennsylvania, and
Virginia all contained very similar language. See McConnell,
Origins & Historical Understanding, 103 HARV. L. REV. at 1456,
1457 n. 242. Other constitutions—those of New York and South
Carolina—separately described the protected freedom of
religion and then referred to the “liberty of conscience” thereby
guaranteed. See id. “Conscience” was used in still other ways
by the provisions of other state constitutions. See id.These state provisions set the stage for the drafting, debate,
and adoption of the First Amendment’s free exercise clause.
The clause as proposed and adopted by the House of Repre-
sentatives incorporated language recognizing “freedom of
conscience”; but the version adopted by the Senate, by the
ensuing conference committee, and which was submitted to
and ratified by the States, omitted that language. See
McConnell, Origins & Historical Understanding, 103 HARV. L. R.
at 1481–84. It is not clear why “conscience” was omitted from
the adopted version of the free exercise clause, but it is doubt-
ful that the elimination was meant to signify a different
understanding of what the clause protected. As Professor
McConnell and others observe, “freedom of religion” and
“freedom of conscience” were terms that were used inter-
changeably in discussions of religious liberty. E.g., McConnell,
92 Nos. 12-3841 & 13-1077
Origins & Historical Understanding, 103 HARV. L. REV. at 1488,
1493–94; Philip A. Hamburger, A Constitutional Right of
Religious Exemption: An Historical Perspective, 60 GEO. WASH. L.
REV. 915, 933–34 & n.80 (1992). McConnell suggests that “rights
of conscience” was dropped either to eliminate a redundancy,
to the extent it signified the same thing as the free exercise of
religion, or to emphasize that it was only the freedom of
religious conscience, as opposed to the freedom of non-
religious belief, that was meant to be protected. McConnell,
Origins & Historical Understanding, 103 HARV. L. REV. at
1488–96. Either way, it is clear that the clause was intended to
protect the exercise of religious conscience. Id. at 1495–96. And
as shown by both the state provisions addressing the freedom
of religion and the other contemporaneous writings I have
cited, the exercise of religious conscience was understood to be
a matter between the individual and his God—not, perhaps, in
the more modern sense of believing whatever one wants, but
rather as a reflection that the individual owed his or her
obedience on moral matters directly to God. Id. at 1498–99;
Hamburger, A Constitutional Right of Religious Exemption, 60
GEO. WASH. L. REV. at 933, 938. The understanding that the
exercise of religion was a matter of the individual’s relation-
ship with and obedience to God was also consistent with the
multiplicity of minority religions practiced in the United States
by the second half of the 18th century, and a consensus that the
country should move away from a Colonial history of officially
established religions (and officially disfavored religions)
toward religious pluralism. Id. at 946.
All of this reinforces what one would otherwise intuit about
religion: that it is inextricably intertwined with characteristics
Nos. 12-3841 & 13-1077 93
that are uniquely human: conscience, belief, faith, and devo-
tion. Religious beliefs have to do with such fundamental
questions as the nature of mankind, where we came from, our
place in the world, what happens when we die, and our
relationships with and obligations to other people. Only the
human mind can entertain such questions.
A corporation is a legal construct which does not have the
sentience and conscience to entertain such ultimate questions.
“In the words of Chief Justice Marshall, a corporation is ‘an
artificial being, invisible, intangible, and existing only in
contemplation of law.’” Browning-Ferris Indus. of Vt. v. Kelco
Disposal, Inc., supra, 492 U.S. at 284, 109 S. Ct. at 2925 (quoting
Trustees of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518,
636 (1819)). It is a creature of man, not of God. It “believes,” if
it can be said to believe anything, only what the people who
found, own, and/or manage the corporation believe. See Ira C.
Lupu, Keeping the Faith: Religion, Equality & Speech in the U.S.
Constitution, 18 Conn. L. Rev. 739, 766 (1986) (“By their nature,
institutions cannot have a conscience or faith.”); Citizens
United, 558 U.S. at 466, 130 S. Ct. at 972 (Stevens, J., concurring
in part & dissenting in part) (“It might also be added that
corporations have no consciences, no beliefs, no feelings, no
thoughts, no desires.”); Conestoga Wood Specialties, 724 F.3d at
385; Gilardi, 2013 WL 5854246, at* 18 (Edwards, J., concurring
in part & dissenting in part); cf. Fleck & Assocs., Inc. v. City of
Phoenix, an Ariz. Muni. Corp., 471 F.3d 1100, 1105 (9th Cir. 2006)
(holding corporation does not possess right recognized in
Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003), to make
autonomous choices in intimate relations free of government
interference: “Corporations are not self-defining autonomous
94 Nos. 12-3841 & 13-1077
creatures worthy of respect and dignity in the relevant
sense.”).
Indeed, it strikes me as potentially demeaning to religious
faith to say that a corporation should be said to possess the
same right to free exercise of religion that a human being
enjoys in this country. Inextricably bound as it is with a
person’s sense of himself, his origins, the world, and what life
is, religious belief (including the lack of such belief) is a
defining trait of humankind; and this is one reason why we
view it as a core component of individual freedom: “At the
heart of liberty is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of
human life. Beliefs about these matters could not define the
attributes of personhood were they formed under compulsion
of the State.” Planned Parenthood of Se. Pennsylvania v. Casey, 505
U.S. 833, 851, 112 S. Ct. 2791, 2807 (1992); see also Conestoga
Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 407–08
(E.D. Pa. 2013); Korte v. U.S. Dep’t of Health & Human Servs., 912
F. Supp. 2d 735, 743–44 (S.D. Ill. 2012); Hobby Lobby Stores, Inc.
v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012), rev’d
en banc, 723 F.3d 1114. To say, as the court does today, that the
right to exercise one’s religious faith may be asserted on the
same terms by a legal construct—an incorporated currency
exchange, accounting firm, or automobile repair shop, for
example—as by a human being, is, to my mind at least,
irreconcilable with the very essence of religious faith and, for
that matter, humankind.
Perhaps there are good reasons to extend the right of free
exercise to religious organizations, including not-for-profit
corporations organized to pursue religious ends. See Conestoga
Nos. 12-3841 & 13-1077 95
Wood Specialties, 724 F.3d at 386 (noting that churches are the
“means by which individuals practice religion”); see also Corp.
of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v.
Amos, 483 U.S. 327, 344–45, 107 S. Ct. 2862, 2872–73 (1987)
(Brennan, J., concurring in the judgment) (recognizing that
potential for government to chill religious exercise is greatest
with respect to not-for-profit activities). As I have said, it is not
entirely clear to me why even this step is necessary given the
associational standing of such entities to assert the free exercise
rights of their members. But, at the least, those entities are
defined by a religious purpose, and so extending to them the
protections of the free exercise clause could be seen as consis-
tent with the purpose of that clause. But let us be clear: we are
in this case being asked to extend the right beyond not-for-
profit religious corporations to corporations not organized for
any purpose connected with religion. See Conestoga Wood
Specialties, 724 F.3d at 385 (“We will not draw the conclusion
that, just because courts have recognized the free exercise
rights of churches and other religious entities, it necessarily
follows that for-profit, secular corporations can exercise
religion.’”); accord Autocam, 730 F.3d at 627; see also Gilardi, 2013
WL 5854246, at *5 (opinion of Brown, J.) (“No such corpus juris
exists to suggest a free-exercise right for secular corpora-
tions.”); Hobby Lobby, 723 F.3d at 1168, 1169 (Briscoe, C.J.,
concurring in part & dissenting in part) (“during the 200-year
span between the adoption of the First Amendment and
RFRA's passage, the Supreme Court consistently treated free
exercise rights as confined to individuals and non-profit
religious organizations”; and “not a single case, until now, has
extended RFRA’s protections to for-profit corporations”).
96 Nos. 12-3841 & 13-1077
Certainly I agree that the wish to profit does not automati-
cally disqualify an individual from asserting religious interests.
See ante at 47–51; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,
501–02, 72 S. Ct. 777, 780 (1952); Beckwith Elec. Co. v. Sebelius,
2013 WL 3297498, at *11 (M.D. Fla. June 25, 2013)
(Kovachevich, J.). Individuals often have multiple reasons for
acting, and simply because they have reasons in addition to a
religious motive does not disqualify them from asserting free
exercise rights. But that does not answer the question whether
a corporation —again, an invention of the law—should be
accorded religious rights, particularly when it is not organized
for religious ends.5
5
The majority postulates that if a for-profit business cannot assert free
exercise rights, then theoretically a Jewish restaurant could be denied the
right to observe dietary restrictions. Ante at 51. Three responses come to
mind. First, the owner and operator of the restaurant, assuming that he is
an observant Jew, might well have a meritorious contention that his own
religious exercise is directly and substantially burdened by having to
handle and serve non-kosher food; as I have said, I do not believe that the
profit-motive disqualifies the owner from asserting his religious interests.
Second, to the extent the restaurant’s target clientele is Jewish, the business
might have third-party standing to assert the free exercise rights of its
customers. See Craig v. Boren, 429 U.S. 190, 194–97, 97 S. Ct. 451, 455–57
(1976) (vendor of “non-intoxicating” 3.2% beer had third-party standing to
assert the equal protection rights of 18-20 year-old male customers, who
were proscribed by state law from being sold beer whereas females of same
age were not); see also, e.g., Carey v. Population Servs., Int’l, 431 U.S. 678,
683–84, 97 S. Ct. 2010, 2015 (1977) (distributor of contraceptive devices); Doe
v. Bolton, 410 U.S. 179, 188, 93 S. Ct. 739, 745 (1973) (physicians providing
abortion services). Third, to bring that hypothetical into line with facts of
this case, the relevant question would be whether the free exercise rights of
(continued...)
Nos. 12-3841 & 13-1077 97
On this point, I would also note the significance of the
procedural posture this case is in. The plaintiffs are seeking
preliminary injunctive relief. “A preliminary injunction is an
extraordinary remedy never awarded as of right.” Winter v.
Natural Resources Def. Council, 555 U.S. 7, 24, 129 S. Ct. 365, 376
(2008) (citing Munaf v. Geren, 553 U.S. 674, 689–90, 128 S. Ct.
2207, 2219 (2008)); see also Mazurek v. Armstrong, 520 U.S. 968,
972, 117 S. Ct. 1865, 1867 (1997) (describing preliminary
injunction as “extraordinary and drastic remedy”) (quoting
11A C. Wright, A. Miller & M. Kane, Fed. Prac. & Proc. § 2948
at 129–30 (2d ed. 1995)). The burden, of course, is on the
plaintiffs as the movants to make a clear showing demonstrat-
ing their entitlement to such relief. See id.; Christian Legal Soc’y
v. Walker, 453 F.3d 853, 870 (7th Cir. 2006) (quoting Goodman v.
Ill. Dep’t of Fin. & Prof’l Regulation, 430 F.3d 432, 437 (7th Cir.
2005)); Chicago Dist. Council of Carpenters Pension Fund v. K&I
Constr., Inc., 270 F.3d 1060, 1064 (7th Cir. 2001). The record at
this stage of the litigation is, to put it generously, slender in
terms of evidence illuminating the asserted religious interests
of the two corporate plaintiffs and how those interests would
be burdened by including coverage for contraceptives in their
5
(...continued)
the kosher restaurant or its owners might somehow be substantially
burdened by the private choice that a restaurant employee makes to
consume non-kosher food. See Jonathan D. Sarna, Constitutional Dilemma on
Birth Control, FORWARD.COM (March 16, 2012) (“We all might agree that
kosher delis should not be coerced into selling ham, but hopefully we
would also all agree that a deli’s employees and customers should not be
penalized for choosing to consume it.”), http://foward.com/articles/
152606/constitutional-dilemma-on-birth-control/ (last visited Nov. 7, 2013).
For the reasons I set forth below, I do not believe they would be.
98 Nos. 12-3841 & 13-1077
employee health care plans. I am thus far short of convinced
that Grote Industries and Korte & Luitjohan Contractors have
demonstrated a clear entitlement to preliminary injunctive
relief protecting whatever free exercise rights they might have.
Hobby Lobby, 723 F.3d at 1164–65 (Briscoe, C.J., concurring in
part & dissenting in part); id. at 1183–84 (Matheson, J., concur-
ring in part & dissenting in part). The notion that any type of
corporation may possess its own free exercise rights is itself far
from a settled proposition; and the plaintiffs’ claim calls for a
wholly unprecedented extension of such rights to secular, for-
profit corporations.
There are, finally, significant logical difficulties posed by
attributing religious rights to secular corporations. Whatever
religious rights a corporation might theoretically exercise can
only come from the people who establish, own, and manage a
corporation. See Conestoga Wood Specialties, 724 F.3d at 385
(“General business corporations do not, separate and apart
from the actions or belief systems of their individual owners or
employees, exercise religion.”) (quoting Hobby Lobby Stores, Inc.
v. Sebelius, 870 F. Supp. 2d at 1291). And here, no one is saying
that Korte & Luitjohan Contractors and Grote Industries are
Catholic corporations; instead, I understand the individual
plaintiffs to be saying that they run the corporations in a way
that is consistent with, and expresses, the principles of their
Catholic faith. But this poses some challenges in defining the
religious beliefs and rights of the corporation.
First, to the extent that a corporation’s religious principles
and identity derive from its owners, what if the owners have
diverse beliefs, diverse degrees of devotion, and diverse
notions as to whether and how the corporation ought to reflect
Nos. 12-3841 & 13-1077 99
their religious beliefs? See Harris v. McRae, supra, 448 U.S. at320–21, 100 S. Ct. at 2690 (noting that where individual church
members hold diversity of religious views as to challenged
law, church itself lacks associational standing to claim infringe-
ment on their free exercise rights); cf. Gilardi, 2013 WL 5854246,
at *22 (Edwards, J., concurring in part & dissenting in part)
(noting extent to which theory that religious rights of corporate
owners are burdened by requirement imposed on corporation
with which they are inextricably bound tuns on unanimity of
owners’ beliefs; “there are no minority shareholders with
different views”). What if, for example, one of a corporation’s
two equal owners is Catholic and the other is Protestant,
Muslim, Jewish, or an atheist—are the beliefs of one or both
attributed to the corporation, and if the beliefs of only one
count, which does? Are the beliefs a conglomeration or
neither? Or suppose that both owners are Catholic, but only
one of them claims that his beliefs are burdened by some legal
requirement (like the mandate at issue here) imposed on the
company, whereas the other professes either indifference or
support for that requirement. Are the beliefs of the one owner
alone sufficient to define those of the corporation? See Eliza-
beth Sepper, Contraception and the Birth of Corporate Conscience,
17–18 (Wash. Univ. St. Louis Sch. of Law Legal Studies
Research Paper Series, Paper No. 13-07-01) (July 2013), avail-
able at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=
2289383, 22 AM. J. GENDER SOC. POL’Y & L. (forthcoming 2014)
(discussing practical and doctrinal difficulties posed by
treating corporation as alter ego of owners for purposes of free
exercise claim).
100 Nos. 12-3841 & 13-1077
Second, suppose that the company’s ownership changes.
What happens then to the beliefs we have attributed to the
corporation based on its ownership? Are challenges such as the
one presented in this case subject to re-litigation every time
there is a change in corporation ownership?
Third, are the religious beliefs of corporate owners solely
determinative of the corporation’s religious principles?
Suppose, for example, that a corporation’s owners have
entirely entrusted the management of the corporation to its
longtime CEO, who is the public face of the corporation and
who also happens to have strongly held religious beliefs about
the way in which the corporation should be run. Are her
beliefs attributable to the corporation? Or suppose that the
owners of a corporation have no professed religious interest in
the way in which a corporation is run, but the focus of the
corporation is on serving members of a particular reli-
gion—selling kosher or halal food products, for example. See
ante at 51. Can the corporation be said to hold the religious
beliefs of its target market, even if its owners and managers do
not?
At oral argument, Grote Industries’ counsel conceded that
if ownership of the company changed, as by death and
inheritance, then a court might have to revisit the nature of the
corporation’s asserted religious interests. But why is that true
if the corporation has its own free exercise rights? By permit-
ting a corporation to assert its own religious rights, we are, I
would think, saying that the corporation may possess such
rights independent of what its owners believe and assert; a
change in ownership by itself would theoretically portend
nothing about the status of the corporation’s religious interests.
Nos. 12-3841 & 13-1077 101
The court has also limited its holding today to closely-held
corporations. The reasons for that limitation are both prag-
matic and obvious: When a company is owned and managed
by a small number of people, it is easy to appreciate the
overlap between the interests of owners and corporation. Thus,
a firm that is owned and operated by a family united in its
religious beliefs presents the strongest case for making the type
of free exercise claim presented here. But if a corporation has
free exercise rights because the Dictionary Act suggests it is
among the “persons” to which RFRA grants the right to make
such a claim, ante at 54 n.17, and if any distinctions between
religious and secular corporations do not matter, ante at 47–54,
then why does a corporation of large, diverse, or even public
ownership not have free exercise rights also? And how would
the beliefs of a public corporation be determined—by a vote at
the annual shareholders’ meeting, for example?
Although the court has held that Korte & Luitjohan
Contractors and Grote Industries have free exercise rights,
what it is saying, in the end, is that it is the religious beliefs of
the Kortes and Grotes that matter; the corporations, in effect,
embody the expression of their beliefs. See ante at 3, 59–60; see
also Autocam, 730 F.3d at 620 (noting that plaintiffs characterize
their corporation as “the business form through which [they]
endeavor to live their vocation as Christians in the world”).
Holding that the two corporations have their own religious
interests is, as I said at the start, merely a means of circumvent-
ing the problem that while it is the beliefs of the Kortes and the
Grotes that are at issue here, the duties imposed by the ACA
upon the corporations do not significantly burden the free
102 Nos. 12-3841 & 13-1077
exercise rights of the Kortes and Grotes themselves. I turn to
that point next.
4.
RFRA provides that “Government shall not substantially
burden a person’s exercise of religion even if the burden
results from a rule of general applicability,” unless the burden
is in furtherance of a compelling governmental interest and is
the least restrictive means of furthering that interest. 42 U.S.C.
§ 2000bb-1(a) & (b). By its reference to substantial burdens,
RFRA expressly calls for a qualitative assessment of the burden
that a challenged statute or other government action imposes
on an individual’s exercise of religion. As I discuss below,
courts have long engaged in such assessments, distinguishing
between direct and indirect, and between minor and meaning-
ful burdens on the exercise of religion. Yet the court today
rejects any such inquiry, departing from both historical
practice and the language of RFRA.
Following the Tenth Circuit’s lead in Hobby Lobby, the
majority rejects any assessment of how direct or attenuated the
burden imposed on the plaintiff’s religious practices may be,
ante at 57–60, reasoning that it is the equivalent of asking
whether the burdened religious practice is central to the
plaintiff’s faith or whether the plaintiff is interpreting his
religious beliefs correctly, ante at 55–56. Instead, the majority
holds that the pertinent inquiry is whether the penalties for
noncompliance with the government’s mandate exert a
sufficiently coercive influence on the plaintiffs. Ante at 56
(citing Hobby Lobby, 723 F.3d at 1137). This single-minded focus
on the coercive aspect of the mandate is yet another means of
Nos. 12-3841 & 13-1077 103
getting past the point that a number of courts have made
previously: that because the mandate is imposed on the
corporate employers rather than the owners themselves, and
because it does not require the owners themselves to do
anything in violation of their religious faith, it does not directly
and substantially burden the owners’ religious practices. See
Grote, 708 F.3d at 858–59 (dissent) (coll. cases); see also Gilardi,
2013 WL 5854246, at *29–*31 (Edwards, J., concurring in part &
dissenting in part). Per the majority’s view, the individual
plaintiffs need only cite an obligation imposed on the corpora-
tions that is inconsistent with their own religious beliefs and
practices; so long as the corporations are coerced into compli-
ance (as by the prospect of substantial fines if they do not
comply) that is enough to establish a substantial burden on
their free exercise rights, without further inquiry into whether
the mandate genuinely and meaningfully interferes with their
religious practices. Hobby Lobby reasons that it is not the court’s
business to assess whether the obligation imposed by the
government is substantial in the sense of whether it directly
burdens the plaintiffs’ religious beliefs and practices or instead
is attenuated, as the government claims it to be. That assess-
ment is equated with a forbidden inquiry into the theological
merit of the plaintiffs’ claim. 723 F.3d at 1137. “Our only task
is to determine whether the claimant’s belief is sincere, and if
so, whether the government has applied substantial pressure
on the claimant to violate that belief.” Id.
This coercion-only test is one of the Tenth Circuit’s inven-
tion. It has the superficial support of language found in
multiple court decisions, see, e.g., Hobbie v. Unemployment
Appeals Comm’n of Fla., 480 U.S. 136, 141, 107 S. Ct. 1046, 1049
104 Nos. 12-3841 & 13-1077
(1987) (quoting Thomas v. Review Bd. of the Indiana Employ. Sec.
Div., 450 U.S. 707, 717–18, 101 S. Ct. 1425, 1431–32 (1981));
Vision Church v. Vill. of Long Grove, 468 F.3d 975, 997 (7th Cir.
2006); Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008),
but it misapprehends both the context and relevance of
coercion in free exercise jurisprudence, and as a result it writes
RFRA’s “substantial burden” provision out of the statute.
The coercion analysis addresses one way in which govern-
ment may potentially interfere with a plaintiff’s free exercise
rights. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir.
2010), cited and relied upon by Hobby Lobby for the coercion
test, describes three ways in which a plaintiff’s religious rights
may be burdened: (1) the government compels the plaintiff to
do something that is inconsistent with his religious beliefs; (2)
the government forbids the plaintiff from doing something that
his religion motivates him to do; or (3) the government does
not directly compel the plaintiff to do something forbidden by
his religious beliefs or to refrain from doing something
commanded by those beliefs, but instead puts substantial
pressure on the plaintiff to do so. See also Sherbert v. Verner,
supra, 374 U.S. at 402, 83 S. Ct. at 1793) (describing in different
terms the multiple ways in which the government might
burden religious rights); Mack v. O’Leary, 80 F.3d 1175, 1179
(7th Cir. 1996) (same), cert. granted & judgment vacated on other
grounds, 522 U.S. 801, 118 S. Ct. 36 (1997).
The third of the Abdulhaseeb categories is exemplified by
Thomas, 450 U.S. 707, 101 S. Ct. 1425. The petitioner in Thomas
was denied unemployment benefits because he had left his
employment voluntarily: he quit after his employer gave him
an assignment (producing military armaments) that he
Nos. 12-3841 & 13-1077 105
believed he could not perform given his religious beliefs. In
denying benefits to Thomas, the state unemployment board
was not forcing him to act, or refrain from acting, contrary to
his religious faith. Nonetheless, by placing him between a rock
and a hard place—either stay on the job, and violate his
religious beliefs, or quit, and surrender his right to unemploy-
ment compensation—the Supreme Court reasoned that the
state was effectively coercing him to act contrary to his
religious principles.
Where the state conditions receipt of an important
benefit upon conduct proscribed by a religious faith,
or where it denies such a benefit because of conduct
mandated by religious belief, thereby putting
substantial pressure on an adherent to modify his
behavior and to violate his beliefs, a burden upon
religion exists. While the compulsion may be indi-
rect, the infringement upon free exercise is nonethe-
less substantial.
450 U.S. at 717–18, 101 S. Ct. at 1432. See also Hobbie, 480 U.S. at139–41, 107 S. Ct. at 1048–49 (refusal to award unemployment
benefits to plaintiff who refused for religious reasons to work
on Sabbath violated free exercise clause); Sherbert, 374 U.S. at403–04, 83 S. Ct. at 1793–94 (same). Likewise, in Abdulhaseeb,
where a prisoner was complaining that the failure to provide
him with a halal diet which included meat interfered with his
right to the free exercise of religion,6 the prison was not literally
6
The prisoner filed suit under the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1(a).
106 Nos. 12-3841 & 13-1077
compelling him to violate his religious beliefs; nonetheless, by
putting him to an unacceptable choice—eat a non-compliant
diet or go hungry—he was being coerced into violating his
religious principles. 600 F.3d at 1316–17; see also Hunafa v.
Murphy, 907 F.2d 46, 47–48 (7th Cir. 1990).
To my mind, this is not a substantial pressure case like
Thomas; rather, this is a more straightforward instance of the
government overtly requiring a plaintiff to do something that
he asserts is contrary to his religious beliefs. The ACA unam-
biguously requires the two corporate plaintiffs to include
contraceptive coverage in their employee health plans. Even
absent the substantial financial penalties for non-compliance,
the two companies presumably would be subject to suit by the
government or by an employee for injunctive relief ordering
them to comply if they did not otherwise do so, see ante at 7
(citing 29 U.S.C. §§ 1132, 1185d); and, in any event, most
individuals and corporations will not feel free to deliberately
ignore what the law plainly requires them to do. So the entire
inquiry into whether the ACA places substantial pressure on
the plaintiffs to take action over their objections is unnecessary
and beside the point. There is no dispute that it does.
What the coercion inquiry does not answer, and which the
court must turn to next, is whether the government, by
requiring the two companies to take action to which the
companies and their owners object on religious grounds, is
imposing a substantial burden on the plaintiffs’ free exercise of
religion. This is where the Tenth Circuit’s decision in Hobby
Lobby, now embraced by this court, goes awry. Hobby Lobby
postulates that evaluating the nature and degree of the burden
imposed by the mandate will require an impermissible inquiry
Nos. 12-3841 & 13-1077 107
into whether the plaintiffs are correctly interpreting and
following religious dogma. 724 F.3d at 1137; see Thomas, 450
U.S. at 715, 101 S. Ct. at 1430 (“We see … that Thomas drew a
line, and it is not for us to say that the line he drew was an
unreasonable one. Courts should not undertake to dissect
religious beliefs because the believer admits he is ‘struggling’
with his position or because his beliefs are not articulated with
the clarity and precision that a more sophisticated person
might employ.”); United States v. Lee, 455 U.S. 252, 257, 102 S.
Ct. 1051, 1055 (1982); Gilardi, 2013 WL 5854246, at *7. Hobby
Lobby thus concludes that once the plaintiff has shown the
government has put substantial pressure on him to do some-
thing to which he sincerely objects on religious grounds, he has
shown all that he needs to show to establish that his free
exercise right is substantially burdened. 723 F.3d at 1137–38; see
ante at 56–57.
This holding effectively rewrites RFRA. The statute does
not prohibit the government from putting substantial pressure
on a plaintiff to do anything, or to be a party to anything, to
which he has an honest religious objection; rather, it states that
the government “shall not substantially burden a person's
exercise of religion … .” § 2000bb-1(a) (emphasis mine).
Congress used the term “substantially” to modify “burden,”
and the relevant inquiry considers how that burden affects the
individual’s ability to believe, profess, and practice his religion.
As Judge Edwards points out in Gilardi, RFRA was specifically
drafted in that way to make clear that not every burden
imposed by government on religious exercise need be justified
by a compelling governmental interest. 2013 WL 5854246, at
*27–*28 (Edwards, J., concurring in part & dissenting in part);
108 Nos. 12-3841 & 13-1077
see also Abdulhaseeb, 600 F.3d at 1316 (“we do not intend to
imply that every infringement on a religious exercise will
constitute a substantial burden”). By its plain terms, then, the
statute calls for a threshold inquiry into the nature of the
burden placed on the plaintiff’s free exercise of religion:
“substantial” is a term of degree, which invites the court to
distinguish large or considerable burdens from minor or
incidental ones. Cf. Toyota Motor Mfg., Ky., Inc. v. Williams, 534
U.S. 184, 196–97, 122 S. Ct. 681, 691 (2002); Sutton v. United Air
Lines, Inc., 527 U.S. 471, 491, 119 S. Ct. 2139, 2150–51 (1999)
(both construing Americans With Disabilities Act’s use of term
“substantially” vis-à-vis limitations on major life activities).
Otherwise, any honestly-perceived burden on religion resulting
from government action would suffice to make out a prima
facie free exercise claim under prong (a) of RFRA and trigger
the strict scrutiny called for by prong (b). § 2000bb-1(a), (b). See
Employ. Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S.
872, 888–89, 110 S. Ct. 1595, 1605–06 (1990); Civil Liberties for
Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.
2003).
No doubt, assessing the substantiality of the claimed
burden on one’s free exercise of religion will sometimes call for
difficult judgments, as the Supreme Court recognized in Smith,
494 U.S. at 887 n.4, 110 S. Ct. at 1605–06 n.4. Indeed, the
difficulty of making such assessments is a key reason why the
Court in Smith ultimately abandoned its earlier free exercise
clause jurisprudence in favor of a simpler test focusing on the
facial neutrality of the challenged law. Id. at 882–89, 110 S. Ct.
at 1602–04. But prior to Smith, the Court often engaged in such
qualitative assessments in evaluating the merits of free exercise
Nos. 12-3841 & 13-1077 109
claims. See, e.g., Jimmy Swaggert Ministries v. Bd. of Equalization,
493 U.S. 378, 391, 110 S. Ct. 688, 696 (1990) (“to the extent that
imposition of a generally applicable tax merely decreases the
amount of money appellant has to spend on its religious
activities, any such burden is not constitutionally significant”);
Hernandez v. C.I.R., 490 U.S. 680, 699, 109 S. Ct. 2136, 2149
(1989) (“We do … have doubts whether the alleged burden
imposed by the [tax] deduction disallowance on the Scientolo-
gists’ practices is a substantial one.”); Lyng v. Nw. Indian
Cemetery Protective Ass’n, 485 U.S. 439, 447, 108 S. Ct. 1319, 1324
(1988) (“It is undisputed that the Indian respondents’ beliefs
are sincere and that the Government’s proposed actions will
have severe adverse effects on the practice of their religion.
Those respondents contend that the burden on their religious
practice is heavy enough to violate the Free Exercise Clause
unless the Government can demonstrate a compelling need to
complete the G-O road or to engage in timber harvesting in the
Chimney Rock area. We disagree.”); Bowen v. Roy, 476 U.S. 693,
707, 106 S. Ct. 2147, 2156 (1986) (“the nature of the burden [on
religious liberty] is relevant to the standard that the govern-
ment must meet to justify the burden”);Tony & Susan Alamo
Found. v. Sec’y of Labor, 471 U.S. 290, 303, 304–06, 105 S. Ct.
1953, 1962, 1963–64 (1985) (after observing that “[i]t is virtually
self-evident that the Free Exercise Clause does not require an
exemption from a governmental program unless, at a mini-
mum, inclusion in the program actually burdens the claimant’s
freedom to exercise religious rights,” the Court finds that
minimum wage, overtime, and recordkeeping requirements
imposed by Fair Labor Standards Act on religious foundation
and its associates did not significantly burden associates’ free
110 Nos. 12-3841 & 13-1077
exercise rights); Johnson v. Robison, 415 U.S. 361, 385, 94 S. Ct.
1160, 1174 (1974) (“The withholding of educational benefits
involves only an incidental burden upon appellees’ free
exercise of religion—if, indeed, any burden exists at all.”); see
also Gilardi, 2013 WL 5854246, at *25–26, *27–*28 (Edwards, J.,
concurring in part & dissenting in part); see generally Andy G.
Olree, The Continuing Threshold Test for Free Exercise Claims, 17
WM. & MARY BILL OF RIGHTS J. 103 (2008). By adopting the
Court’s pre-Smith jurisprudence and making a “substantial
burden” on the free exercise of religion the controlling criterion
for the articulation of a prima facie case under RFRA, Congress
has expressly called for just this sort of inquiry. Gilardi, 2013
WL 5854246, at *27–*28 (Edwards, J., concurring in part &
dissenting in part).
And, in fact, when applying the substantial-burden
requirement found in both RFRA and RLUIPA, 42 U.S.C.
§§ 2000cc(a)(1), 2000cc-1(a), this circuit and others have always
considered the nature and degree of the burden imposed by
government action, holding in multiple cases that de minimis
or otherwise insignificant burdens on the free exercise of
religion do not warrant relief under these statutes. E.g., Eagle
Cove Camp & Conf. Ctr., Inc. v. Town of Woodboro, Wisconsin,
2013 WL 5820289, at *5, (7th Cir. Oct. 30, 2013) (“the burden
must be truly substantial”); id. at *5–*7; Sts. Constantine & Helen
Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895,
899–901 (7th Cir. 2005); Rapier v. Harris, 172 F.3d 999, 1006 n.4
(7th Cir. 1999); Roman Catholic Bishop of Springfield v. City of
Springfield, 724 F.3d 78, 95–97 (1st Cir. 2013); McFaul v.
Valenzuela, 684 F.3d 564, 576–77 (5th Cir. 2012); Abdulhaseeb, 600
F.3d at 1316; Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058,
Nos. 12-3841 & 13-1077 111
1068–1073 (9th Cir. 2008) (en banc); Smith v. Allen, 502 F.3d
1255, 1277–78 (11th Cir. 2007), abrogated on other grounds by
Sossamon v. Texas, 131 S. Ct. 1651 (2011); Norwood v. Strada, 249
F. App’x 269, 272 (3d Cir. 2007); McEachin v. McGuinnis, 357
F.3d 197, 203 n.6 (2d Cir.2004); Weir v. Nix, 114 F.3d 817, 821–22
(8th Cir. 1997); cf. Gonzales v. O Centro Espirita Beneficente Uniao
do Vegetal, supra, 546 U.S. at 426, 126 S. Ct. at 1217 (noting that
for purposes of plaintiff’s RFRA claim, government conceded
law in question substantially burdened sincere free exercise of
religion). These cases are flatly inconsistent with the notion
that we cannot assess the nature or degree of any burden
imposed on a plaintiff’s free exercise rights by government
action.7
Evaluating the nature of the burden imposed is not a test of
the orthodoxy, consistency, or theological merit of a plaintiff’s
stated religious beliefs. Provided the plaintiff is sincere, ante at
55, we may accept that his objection is one grounded in his
religious beliefs. But simply because someone has a good-faith
objection, based in religion, to a particular government action
does not mean that his right to the free exercise of religion is
7
Some of the RLUIPA cases may be distinguished superficially, in that the
plaintiffs were prisoners who sought damages for occasional denials of
kosher or halal meals or other accommodations to their religious needs.
E.g., Rapier, 172 F.3d at 1006 n.4 (unavailability of non-pork food trays to
prisoner at three of 810 meals). This suit, by contrast, involves a challenge
to a statutory mandate that the plaintiffs contend is inconsistent with their
religious beliefs. Nonetheless the cases remain relevant for the proposition
that not all burdens on the free exercise of religion qualify as substantial.
The nature of the claim (impingement on the free exercise of religion) is the
same; the only difference is the context in which the claim is asserted.
112 Nos. 12-3841 & 13-1077
actually and substantially burdened by that action. Courts
routinely undertake examinations of the degree to which a
given law, regulation, or other government action does or does
not intrude upon an individual’s constitutionally protected
interests. See Bowen v. Roy, 476 U.S. at 706–07, 106 S. Ct. at
2155–56 (burdens on religious liberty); see also, e.g., Scott v.
Harris, 550 U.S. 372, 383–84, 127 S. Ct. 1769, 1778 (2007) (use of
force in seizure of the person); United States v. Knights, 534 U.S.
112, 118–19, 122 S. Ct. 587, 591 (2001) (searches of the home);
Planned Parenthood of Se. Pa. v. Casey, supra, 505 U.S. at 874, 112
S. Ct. at 2819 (abortion regulations); Burdick v. Takushi, 504 U.S.
428, 434, 112 S. Ct. 2059, 2063–64 (1992) (regulation of voting
rights); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 451–52,
110 S. Ct. 2481, 2486 (1990) (traffic stops); Univ. of Penn. v.
E.E.O.C., 493 U.S. 182, 198–201, 110 S. Ct. 577, 586–88 (1990)
(compelled disclosure of confidential university faculty peer
reviews); Turner v. Safley, 482 U.S. 78, 87–89, 107 S. Ct. 2254,
2261 (1987) (restrictions on prisoner’s First Amendment rights);
Weatherford v. Bursey, 429 U.S. 545, 557–58, 97 S. Ct. 837, 844–45
(1977) (violations of attorney-client privilege); Branzburg v.
Hayes, 408 U.S. 665, 682–83, 92 S. Ct. 2646, 2657 (1972) (com-
pelled disclosure of reporter’s confidential sources). Without
venturing into the content and merit of the plaintiffs’ religious
beliefs, we may still consider the nature of the act that the
plaintiffs are called upon to perform, the connection between
their beliefs and the compelled action, and the extent to which
their ability to practice their religion is interfered with by that
action.
Thus, for example, in assessing the substantiality of the
burden imposed on a plaintiff’s free exercise rights, we may
Nos. 12-3841 & 13-1077 113
consider whether the burden is direct or indirect. Braunfeld v.
Brown, supra, 366 U.S. 599, 81 S. Ct. 1144, makes this clear.
Braunfeld sustained Pennsylvania’s Sunday-closing law against
a free exercise challenge notwithstanding the economic burden
that the law imposed on Jewish merchants: because their
religion proscribed them from doing business on Saturdays,
requiring them to also close their doors on Sundays imposed
an extra cost on them that it did not impose on other business-
people. The court emphasized that the law imposed “only an
indirect burden on the exercise of religion … .” Id. at 606, 81 S.
Ct. at 1147.
[I]t cannot be expected, much less required, that
legislators enact no law regulating conduct that may
in some way result in an economic disadvantage to
some religious sects and not to others because of the
special practices of the various religions. We do not
believe that such an effect is an absolute test for
determining whether the legislation violated the
freedom of religion protected by the First Amend-
ment.
Id. at 606–07, 81 S. Ct. at 1147–48. Hobby Lobby suggests that the
Court in Lee subsequently abandoned consideration of whether
the burden imposed by a statute on free exercise rights is direct
or indirect. 723 F.3d at 1139–40. Yet, the government’s argu-
ment in Lee—that an Amish businessman could contribute to
the Social Security system without violating his religious belief
that it is sinful for a family not to care for its own elderly—was
not an argument about the direct or indirect effect of the law,
but rather a quarrel with Lee’s understanding of the Amish
faith; and the Court’s unwillingness to mediate a theological
114 Nos. 12-3841 & 13-1077
dispute was what led it to reject the argument. 455 U.S. at 257,
102 S. Ct. at 1055. What is true is that the Court, subsequent to
Braunfeld, rejected the directness or indirectness of the burden
as a controlling factor in free exercise cases. See Sherbert v.
Verner, supra, 374 U.S. at 403–04, 83 S. Ct. at 1794 (“[I]t is true
that no criminal sanctions directly compel appellant to work a
six-day week. But this is only the beginning, not the end, of our
inquiry.”); see also Thomas, 450 U.S. at 714, 101 S. Ct. at 1432(“While the compulsion may be indirect, the infringement
upon free exercise rights is nonetheless substantial.”). But the
Court’s decision in Bowen v. Roy, supra, 476 U.S. at 706–07, 106
S. Ct. at 2156, decided four years after Lee and which I discuss
below, makes clear that the Court still regards it as a relevant
consideration. Lower court cases likewise confirm that the
directness or indirectness of the burden imposed on the
exercise of one’s religious exercise right remains a material
consideration. Compare, e.g., D.L. ex rel. K.L. v. Baltimore Bd. of
Sch. Com’rs, 706 F.3d 256, 263–64 (4th Cir. 2013) (school dis-
trict’s policy requiring student to be enrolled in public school
in order to receive services under section 504 of the Rehabilita-
tion Act, 29 U.S.C. § 794, did not unduly burden parents’ free
exercise rights, although they wished to send him to private
school and would have to bear full costs of the rehabilitation
services for their son if they did so), and Messiah Baptist Church
v. Cnty. of Jefferson, Colo., 859 F.2d 820, 825–26 (10th Cir. 1988)
(zoning ordinance which prohibited schools, community
buildings, and churches from agricultural zone did not
impermissibly burden free exercise rights of church and its
members even if it made their exercise of religion more
expensive, where, inter alia, any burden imposed by neutral
Nos. 12-3841 & 13-1077 115
law was an indirect burden), with Paul v. Watchtower Bible &
Tract Soc’y of N.Y., Inc., 819 F.2d 875, 880–81 (9th Cir. 1997)
(subjecting Jehovah’s Witness church to tort damages for
religious practice of “shunning” would violate free exercise
clause, as imposition of damages could constitute a direct
burden on religion).
Free exercise cases have also drawn a distinction between
what a challenged law or practice requires the plaintiff himself
to do, and what it permits another party—specifically, the
government—to do to which plaintiff objects on religious
grounds. For example, in Bowen v. Roy, a Native American man
with a young daughter objected to a statutory requirement that
he provide a Social Security number for each member of his
household in order to obtain benefits from the Aid to Families
with Dependent Children program (“AFDC”) and to a com-
panion requirement that state AFDC plans use such numbers
in administering their plans. With respect to the latter require-
ment, he believed that if state agencies used an identifying
number for his daughter, they would “rob” her spirit and
“prevent her from attaining greater spiritual power,” 476 U.S.
at 696, 106 S. Ct. at 2150; he therefore contended that the
requirement that state agencies use their daughter’s Social
Security number violated his right to the free exercise of his
religion. The Supreme Court disagreed. It noted that the
plaintiff was not complaining of an intrusion on his freedom of
religious belief, which was absolute, or of an intrusion upon
the liberty of his own conduct, which was less than absolute;
instead, the plaintiff was invoking the free exercise clause in an
effort to dictate how the government should transact its
116 Nos. 12-3841 & 13-1077
business. Id. at 699, 106 S. Ct. at 2152. The Court rejected the
notion that the reach of free exercise clause extended this far:
Never to our knowledge has the Court interpreted
the First Amendment to require the Government
itself to behave in ways that the individual believes
will further his or her spiritual development or that
of his or her family. The Free Exercise Clause simply
cannot be understood to require the Government to
conduct its own internal affairs in ways that com-
port with the religious beliefs of particular citizens.
Just as the Government may not insist that appellees
engage in any set form of religious observance, so
appellees may not demand that the Government join
in their chosen religious practices by refraining from
using a number to identify their daughter. “[T]he
Free Exercise Clause is written in terms of what the
government cannot do to the individual, not in
terms of what the individual can extract from the
government.” Sherbert v. Verner, 374 U.S. 398, 412, 83
S. Ct. 1790, 1798 (1963) (Douglas, J., concurring).
As a result, Roy may no more prevail on his reli-
gious objection to the Government’s use of a Social
Security number for his daughter than he could on
a sincere religious objection to the size or color of the
Government’s filing cabinets. The Free Exercise
Clause affords an individual protection from certain
forms of governmental compulsion; it does not
afford an individual right to dictate the conduct of
the government’s internal procedures.
Nos. 12-3841 & 13-1077 117
Id. at 699–700, 106 S. Ct. at 2152. (emphasis in original). See also
Lyng v. Nw. Indian Cemetery Protective Ass’n, supra, 485 U.S. at451–53, 108 S. Ct. at 1326–28 (government’s decision to allow
timber harvesting and road construction in area of national
forest used for religious purposes by Native American tribes
did not interfere with free exercise rights of tribes, notwith-
standing potentially devastating impact government’s decision
might have on tribes’ religious activities: “Whatever rights the
Indians may have to the use of the area, … those rights do not
divest the Government of its right to use what is, after all, its
land.”) (emphasis in original).
Building upon the Supreme Court’s holding in Roy, the
D.C. Circuit in Kaemmerling v. Lappin, supra, 553 F.3d 669,
sustained the dismissal of a prisoner’s claim under RFRA that
the statutorily mandated collection and use of his DNA for
purposes of a national law enforcement database substantially
burdened his free exercise rights. Kaemmerling alleged that as
an Evangelical Christian, he viewed DNA as the building block
of God’s creative work, and he believed that the collection,
storage, and use of one’s DNA was tantamount to laying the
foundation for the rise of an anti-Christ. In rejecting the
viability of Kaemmerling’s claim, the court emphasized that
the government was not forcing him to modify his own
behavior:
… Kaemmerling does not allege facts sufficient to
state a substantial burden on his religious exercise
because he cannot identify any “exercise” which is
the subject of the burden to which he objects. The
extraction and storage of DNA information are
entirely activities of the FBI, in which Kaemmerling
118 Nos. 12-3841 & 13-1077
plays no role and which occur after the [Bureau of
Prisons] has taken his fluid or tissue sample (to
which he does not object). The government’s extrac-
tion, analysis, and storage of Kaemmerling’s DNA
information does not call for Kaemmerling to mod-
ify his religious behavior in any way—it involves no
action or forbearance on his part, nor does it other-
wise interfere with any religious act in which he
engages. Although the government’s activities with
his fluid or tissue sample after the BOP takes it may
offend Kaemmerling’s religious beliefs, they cannot
be said to hamper his religious exercise because they
do not “pressure [him] to modify his behavior and
to violate his beliefs.” Thomas, 450 U.S. at 718, 101 S.
Ct. 1425.
Kaemmerling alleges no religious observance that
the DNA Act impedes, or acts in violation of his
religious beliefs that it pressures him to perform.
Religious exercise necessarily involves an action or
practice, as in Sherbert, where the denial of unem-
ployment benefits “impede[d] the observance” of
the plaintiff’s religion by pressuring her to work on
Saturday in violation of the tenets of her religion,
374 U.S. at 404, 83 S. Ct. 1790, or in Yoder, where the
compulsory education law compelled the Amish to
“perform acts undeniably at odds with fundamental
tenets of their religious beliefs,” 406 U.S. at 218, 92 S.
Ct. 1526. Kaemmerling, in contrast, alleges that the
DNA Act’s requirement that the federal government
collect and store his DNA information requires the
Nos. 12-3841 & 13-1077 119
government to act in ways that violate his religious
beliefs, but he suggests no way in which these
governmental acts pressure him to modify his own
behavior in any way that would violate his beliefs.
See Appellant’s Br. at 21 (describing alleged substan-
tial burden as “knowing [his] strongly held beliefs
had been violated by a[n] unholy act of an oppres-
sive regime”).
553 F.3d at 679. (The court went on to hold, alternatively, that
even if the DNA mandate did impose a substantial burden on
Kaemmerling’s free exercise rights, it would nonetheless
survive RFRA’s step-two strict scrutiny analysis. Id. at 680–85.)
These lines of cases thus supply two criteria that can help
us to determine whether the burden imposed by government
action upon a plaintiff’s free exercise rights is substantial. First,
the Braunfeld line of cases instructs us to look at the burden
resulting from government action and consider the way in
which it purportedly interferes with an individual’s exercise of
religion: is the burden direct, such that it actually prevents a
person from behaving in accordance with his religion, or does
it impose only an indirect, incidental burden that, for example,
makes the observance of his religion more costly but does not
actually preclude his religious exercise? Second, the Roy line of
cases draws a distinction between what the law requires a
plaintiff himself to do, and what it permits or requires a third
party to do. These cases recognize that although the plaintiff
may have a religiously-based objection to what the govern-
ment or another third party does with something that the law
requires the plaintiff to provide (in Roy, a Social Security
number, in Kaemmerling, his DNA), the free exercise clause
120 Nos. 12-3841 & 13-1077
does not necessarily permit him to impose a restraint upon
another’s action.
Admittedly, neither line speaks directly to the issues before
us now: the Supreme Court has never before considered
whether and under what circumstances the statutorily-man-
dated provision of a particular benefit to an employee will
substantially burden the employer’s free exercise rights. (The
precedent that is closest to that scenario is United States v. Lee,
in which the Court held that the objecting Amish employer
was obliged to pay Social Security taxes notwithstanding his
religious objection to doing so, given the government’s
compelling interest in a uniform national system of retirement
pay.) The cases I have just discussed are nonetheless relevant
in two senses. First, like the various circuit cases finding certain
burdens on free exercise rights to be insubstantial, supra at 110-
111, they confirm that we can and in fact must examine the
nature and degree of the burden resulting from government
action to decide whether it constitutes a substantial burden for
purpose of RFRA. Second, they demonstrate that in making
that assessment, we must consider precisely how the objected-
to action relates to the individual’s exercise of his religious
rights.
Taking my cue from these cases, I move on to consider
precisely how the ACA’s requirement that a corporate em-
ployer provide health insurance to its employees that includes
contraceptive coverage does or does not burden the free
exercise rights of its owners. Because the ACA does not
actually require the individual plaintiffs themselves to do
anything contrary to their religious beliefs, and because their
desire not to have their companies facilitate the use of contra-
Nos. 12-3841 & 13-1077 121
ception necessarily implicates the private choices of employees
as to how they will use the insurance coverage they have
earned as a benefit of their work, I am convinced that any
burden imposed on the free exercise rights of the individual
plaintiffs is too attenuated to qualify as a substantial burden.
5.
A substantial burden is one that bears direct, primary, and
fundamental responsibility for making the plaintiff’s religious
exercise impracticable. Ante at 54–55; Nelson v. Miller, 570 F.3d
868, 878 (7th Cir. 2009); Koger v. Bryan, 523 F.3d 789, 799 (7th
Cir. 2008); Civil Liberties for Urban Believers v. City of Chicago,
supra, 342 F.3d at 761. Here, the contention is not that the ACA
proscribes any belief or interferes with any form of worship
activity, but that the statute nonetheless requires the plaintiffs
to lend material support to an activity (the use of contracep-
tion) that is inconsistent with the individual plaintiffs’ Catholic
faith. Specifically, the company health plans must provide
insurance coverage which, by fully underwriting the cost of
contraceptive care, facilitates what the Kortes and the Grotes
view as a moral wrong (the use of contraception).
For two key reasons, the mandate poses no direct burden
on the Kortes’ and Grotes’ exercise of religion. First, the
mandate does not require them to alter their own practices in
any way. As the court’s articulation of the asserted burden
makes clear, what they are objecting to is the use of contracep-
tion by third parties, which the plaintiffs do not wish to
facilitate. Second, to the extent the Kortes’ and the Grotes’
concern has to do with facilitating what they believe to be
immoral conduct by third parties, it is the corporate health
122 Nos. 12-3841 & 13-1077
plans, not they, who fund the insurance which employees may
use to procure contraception.
The first point is obvious, and I have made it before, but it
cannot be repeated often enough. Nothing in the ACA requires
the Kortes or the Grotes themselves to do anything that
violates the Catholic Church’s disapproval of contraception.
They need not purchase, use, or dispense contraceptives; they
need not promote or endorse the use of contraceptives; nor
need they remain silent as to what their faith teaches them
about the immorality of contraceptive use. See Gilardi, 2013 WL
5854246, at *29–*31 (Edwards, J., concurring in part & dissent-
ing in part); Goehring v. Brophy, 94 F.3d 1294, 1300 (9th Cir.
1996) (use of university registration fee to fund student health
insurance plan that included abortion coverage did not
substantially burden free exercise rights of students who
objected to abortion on religious grounds because, in part,
“plaintiffs are not required to accept, participate in, or advo-
cate in any manner for the provision of abortion services”),
overruled on other grounds by City of Boerne v. Flores, supra, 521
U.S. 507, 117 S. Ct. 2157; cf. Stormans, Inc. v. Selecky, 586 F.3d
1109, 1121 (9th Cir. 2009) (objection by pharmacy to dispensing
emergency contraception); Menges v. Blagojevich, 451 F. Supp.
2d 992, 1000–02 (C.D. Ill. 2006) (same). Their only connection
to the objected-to use of contraception is indirect: (a) the Grotes
and the Kortes are both the owners of closely-held corpora-
tions; (b) which are now required by the ACA to provide
standardized health-care coverage to employees; (c) which
employees may elect, inter alia, to use to obtain contraception.
Each step in this chain separates them by an additional degree
from the objected-to practice of contraception.
Nos. 12-3841 & 13-1077 123
It is the corporations, not the individual plaintiffs, which as
the employers are obligated to provide the requisite coverage
to employees of the firms. The Kortes and the Grotes incorpo-
rated their businesses for a reason. Business owners form
corporations precisely to insulate themselves from the obliga-
tions of the corporation and to create a separate entity to carry
on the business. The corporations and only the corporations
bear the obligation to provide the insurance coverage to
employees; the Kortes and the Grotes bear no personal
obligation to pay for the coverage. Thus the money—the
“material support,” as the court describes it—comes from
Korte & Luitjohan Contractors and Grote Industries, not from
the pockets of the individual plaintiffs.8
Moreover, what the companies are providing is a form of
employee compensation, like wages. Handing over a paycheck
to an employee may materially facilitate the purchase of any
number of (perfectly legal) goods and services—alcohol,
lottery tickets, cigarettes, adult pornography, contraception,
8
The sparse record before us does not reveal whether and to what degree
the contraceptive mandate may increase the cost of health insurance to
employers. Full coverage of contraception may (like the mandated coverage
of other preventive services) save insurers and employers money in the
long run by reducing the multiple costs associated with unplanned
pregnancies. See infra at 144-145; Institute of Medicine, Committee on
Preventive Services for Women, Clinical Preventive Services for Women:
Closing the Gaps, 107 (2011) (costs of unintended pregnancies in United
States in 2002 estimated to be $5 billion, while costs saved due to contracep-
tion estimated to be $19.3 billion), available at http://www.nap.edu/
catalog.php?record_id=13181. In any case, the plaintiffs’ argument here
turns not on the additional cost of providing contraceptive coverage but to
facilitating the use of contraceptives by providing that coverage, period.
124 Nos. 12-3841 & 13-1077
abortion, and Harry Potter books, to name a few—that are
contrary to an employer’s religious beliefs. Of course, an
employer typically does not know how an employee will
spend his wages. (Neither does he typically know what
healthcare decisions his employee is making.) But what if he
does know? Suppose an employee announces, “As soon as I
get my paycheck, I am going to have an abortion.” Or suppose
it is well known at the workplace that a particular employee
drinks himself blind at a local tavern every Friday night after
he gets paid. Can the employer withhold the paycheck on the
grounds that turning it over will materially assist an act that he
finds morally intolerable? Without explaining why, the
plaintiffs concede that an employer cannot do this. They do not
contend that the possibility, or even the foreknowledge, that an
employee can and will use her wages to engage in an activity
proscribed by the plaintiffs’ religious beliefs substantially
burdens their free exercise rights, notwithstanding that the
payment of wages to the employees will facilitate the objected-
to activity.9 How is the provision of health insurance different?
One difference is that the employer plays some role in estab-
lishing and administering the health care plan, as opposed to
supplying the employee with a voucher that the employee can
use to purchase his own insurance elsewhere. But the insur-
9
As Judge Edwards put it in Gilardi, “the Gilardis are no more of an
‘essential cause’ of increasing the use of contraception when they authorize
Freshway [their company] to pay for a benefits plan that employees might
use to get contraception than when they authorize wages that an employee
might use to purchase contraception she would not otherwise be able to
afford.” 2013 WL 5854246, at *29 (Edwards, J., concurring in part and
dissenting in part) (emphasis in original).
Nos. 12-3841 & 13-1077 125
ance is nonetheless a component of compensation that the
employee has earned—an employee accepts less in salary or
hourly pay in exchange for benefits like health insurance, and,
in most cases, contributions have been withheld from the
employee’s paycheck to further defray the costs of that
insurance. See Sepper, Contraception and the Birth of Corporate
Conscience, supra, at 22.10 The fact that the employer in adminis-
tering the plan is treated as a fiduciary, with a corresponding
obligation to act in the employee’s interest is consistent with the
notion that the insurance, while provided by the employer,
belongs to the employee. See 29 U.S.C. §§ 1002(21)(A)(I)
(defining ERISA fiduciaries to include person with authority or
control over plan assets); 1104(a)(1)(A) (ERISA fiduciaries must
discharge duties to plan solely in interests of plan participants
and beneficiaries, for exclusive purpose of providing benefits
thereto).11
10
The record does not disclose what the plaintiffs’ employees contribute
toward the cost of their health insurance. The average employee currently
contributes $999 toward the $5,884 cost of an employer-sponsored, single-
coverage plan (roughly a 17-percent share), and $4,565 toward the $16,351
cost of an employer-sponsored, family-coverage plan (roughly a 28-percent
share). See Henry J. Kaiser Family Foundation, 2013 Employer Health Benefits
Survey, Summary of Findings & Ex. B (Aug. 20, 2013), available at http://
kff.org/report-section/2013-summary-of-findings/ (last visited Nov. 7, 2013).
11
See generally Howell v. Motorola, Inc., 633 F.3d 552, 562 (7th Cir. 2011)
(discussing when employer and plan sponsor act as fiduciaries); see also, e.g.,
Orth v. Wis. State Emp. Union Counsel 24, 546 F.3d 868, 871, 874 (7th Cir.
2008) (employer breached fiduciary duty to retiree by deducting 100 percent
of cost of his insurance benefits from retirement pay rather than 10 percent
as specified by contract); Phelps v. C.T. Enters., Inc., 394 F.3d 213, 221–22 (4th
(continued...)
126 Nos. 12-3841 & 13-1077
Although the plaintiffs cast their objection as one to the
provision of contraceptive coverage in and of itself, what they
are really objecting to is the private choices that employees and
their families might make in reliance on health care coverage
that includes contraceptive care. That the coverage is provided
does not mean that it will necessarily be used, or used in a way
that the plaintiffs find objectionable. This much is made clear
by the Korte firm’s ethics policy, which itself recognizes that
the use of some contraceptive medications, for non-contracep-
tive purposes, is consistent with the Kortes’ Catholic faith. Ante
at 12–13 & n.5. The court too recognizes this when it describes
the plaintiffs’ objection as one to providing material assistance
to immoral conduct—i.e., the use of contraceptives. Ante at 13,
60. And this is the point—that the objection turns not on the
coverage in isolation but the decision to use covered contracep-
tives for a particular purpose, i.e. to prevent procreation. See
Sepper, Contraception and the Birth of Corporate Conscience, at 18,
19 (noting that burden is non-existent if employees share
company’s asserted religious values and therefore do not use
contraceptive coverage). That decision is merely one of many
that plaintiffs might find objectionable. For what the ACA
requires the plaintiffs to provide to their employees is not a
contraceptive insurance policy but a health care plan that
covers literally thousands of services. The potential ways in
11
(...continued)
Cir. 2005) (evidence that employer diverted employee contributions to
health benefits plan to other corporate uses supported claim for breach of
fiduciary duty); LoPresti v. Terwilliger, 126 F.3d 34, 40 (2d Cir. 1997)
(company owner’s diversion of pension contributions deducted from
employee pay to other uses constituted breach of fiduciary duty).
Nos. 12-3841 & 13-1077 127
which employees might choose to use those services surely
number many times more, and any number of those choices
might be objectionable to one religion or another. See Grote, 708
F.3d at 866 (dissent).
This is the sense in which Zelman v. Simmons-Harris, 536
U.S. 639, 652–654, 122 S. Ct. 2460, 2467–68 (2002), and Bd. of
Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 233–35
120 S. Ct. 1346, 1356–57 (2000), are relevant: both emphasize
the critical role that the independent decisions of third parties
play in walling off an unwilling financier from activities or
speech that he objects to subsidizing on constitutional grounds.
In Zelman, the objectors were taxpayers who contended that
the state’s issuance of vouchers that parents could (and in
overwhelming numbers did) use to send their children to
parochial schools violated the First Amendment’s establish-
ment clause, in that public funds were being used for religious
purposes. In Southworth, the objectors were public university
students who argued that the use of their mandatory activity
fees to support student groups whose missions and speech
they opposed violated their own First Amendment right to free
speech. The Supreme Court rejected the First Amendment
claims in both cases. In Zelman, the Court emphasized that
because the voucher program was neutral with respect to
religion, and public money reached religious schools solely by
way of “genuine and independent private choice,” the protest-
ing taxpayers did not have a valid Establishment Clause claim.
536 U.S. at 652, 122 S. Ct. at 2467. And in Southworth, the Court
likewise stressed that because student activity funds were
allocated on a viewpoint-neutral basis, ensuring that both
minority and majority views would be heard, there was no
128 Nos. 12-3841 & 13-1077
genuine risk that any student group would be perceived as
speaking for the university and its students, and thus no
meritorious claim that the objecting students were being
compelled to “speak” in violation of their own beliefs and
views. 529 U.S. at 233–35, 120 S. Ct. at 1356–57.
Yes, Zelman and Southworth can be distinguished from this
case: Zelman involved an establishment clause claim, and
Southworth involved a free speech claim, whereas this case
presents a free exercise clause claim. But at the bottom of all
three cases is the claim that forcing the plaintiff to give his
financial aid to activity or speech that he finds objectionable
cannot be reconciled with his First Amendment freedoms.
Central to the rejection of this claim in Zelman and Southworth
was official agnosticism, which permitted the funds to be used
as third parties (in Zelman, the parents, and in Southworth, the
student council) chose, with no reasonable perception that
those choices were attributable to either the government or the
objecting plaintiff. The same reasoning explains why manda-
tory, employer-sponsored insurance coverage which includes
contraception as a covered service does not meaningfully
burden the plaintiffs’ free exercise rights. By including contra-
ception in the required coverage, the government is in no way
requiring any company owner to use, endorse, or dispense
contraception in violation of his own religious beliefs; the
choice whether and under what circumstances to use that
coverage is left to the individual employee and her physician,
to be made in private, with no participation by the employer.
Although funds from the company health plan are being used
to facilitate that choice, no objective observer would attribute
that choice to the company, let alone its owner. See Gilardi, 2013
Nos. 12-3841 & 13-1077 129
WL 5854246, at *30 (Edwards, J., concurring in part & dissent-
ing in part).
Finally, it is worth considering the ramifications of deeming
one choice that may be made by an employee using her
workplace healthcare plan to be a burden on her employer’s
free exercise rights. Again, what the ACA compels a covered
employer to provide is not a contraceptive care plan but a
comprehensive health care plan that includes thousands of
medical services, including contraceptive care. It may seem
both possible and reasonable to carve out the coverage of
contraceptives from the rest of the ACA-mandated insurance
plan, in that the plaintiffs have a categorical objection to the
use of contraceptives (insofar as they are used to prevent
contraception) and the contraception mandate itself stands out
in that it requires coverage of contraceptives without copay-
ment by the employee.12 (I suspect that as a matter of public
discourse, if not judicial treatment, the fact that contraceptive
care implicates both sex and women, also has something to do
with the reason why the contraception mandate seems differ-
ent from other provisions of the ACA.) However, as I have
pointed out previously, a given employer might find any
12
It is misleading, however, to say, as many reports do, that the mandate
requires the coverage of contraceptives at no cost to the employee, given
that most employees pay some portion of the cost of their workplace health
insurance. See supra n.10. Many other preventive and screening healthcare
services are likewise to be provided to the employee without a copayment
under the ACA. See http://www.healthcare.gov/what-are-my-preventive-
care-benefits (listing 15 categories of preventive care to be covered with no
copayments for all insureds, 22 categories of such care for women, and 25
categories for children) (last visited Nov. 7, 2013).
130 Nos. 12-3841 & 13-1077
number of those services, either categorically or situationally,
inconsistent with his or her religious beliefs. If, as the court
today holds, it is a substantial burden on an employer’s free
exercise rights to compel him to insure a form of medical care
to which he objects on religious grounds, then all manner of
insured medical services are subject to challenge under RFRA.
See Gilardi, 2013 WL 5854246, at *32 (Edwards, J., concurring in
part & dissenting in part).
Nor, logically, would the potential objections that employ-
ers could raise be limited to health insurance. Federal law
grants any number of rights to employees, the recognition and
accommodation of which an employer might find to be
inconsistent with his religious beliefs. My hypothetical about
extending FMLA leave to a gay parent is but one example.
Likewise, beyond the employer-employee relationship, there
may be any number of federal rights bestowed on third
parties—customers, vendors, creditors, debtors—to which the
owner of a business theoretically might pose a religious
objection. Today’s decision certainly opens the door to chal-
lenging the enforcement of those rights against a business as a
burden on the free exercise rights of its owner.13
13
The variety of government requirements that individuals, businesses, and
religious organizations have challenged on free exercise grounds makes this
clear. See, e.g., Tony & Susan Alamo Found. v. Sec’y of Labor, supra, 471 U.S. at303–06, 105 S. Ct. at 1962–64 (minimum wage, overtime, and recordkeeping
requirements of Fair Labor Standards Act); Bob Jones Univ. v. United States,
461 U.S. 574, 603–04, 103 S. Ct. 2017, 2034–35 (1983) (criteria for tax-exempt
status); United States v. Lee, supra, 455 U.S. at 256–60, 102 S. Ct. at 1055–57
(Social Security taxes); In re Young, supra, 82 F.3d at 1418–20 (recovery of
(continued...)
Nos. 12-3841 & 13-1077 131
What also should not be overlooked is that by exempting a
corporation from a statute that grants a particular right to the
corporation’s employee or to another third party on the ground
that the mandate impinges on the religious rights of the
corporate owners, the court is depriving the third party of a
right that Congress meant to give him. The Supreme Court has
hinted at a reluctance to recognize a plaintiff’s request for a
religious exemption from a legal requirement when granting
the exemption would burden the rights of others. See Texas
Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8, 109 S. Ct. 890, 901 n.8
(1989) (plurality) (noting significance, in free exercise and
establishment clause jurisprudence, of extent to which pro-
posed exemptions for religious groups would burden the
rights of third parties); West Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 624, 630, 63 S. Ct. 1178, 1181 (1943) (noting
that free exercise challenge to requirement that public school
students salute American flag “does not bring [plaintiffs] into
collision with rights asserted by any other individual.”);
Braunfeld, 366 U.S. at 604, 81 S. Ct. at 1146 (noting Barnette’s
observation as a limit on free exercise rights); see also South
Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203,
1211 (6th Cir. 1990) (“We respect the Church’s objections to the
workers’ compensation system and its remarkable devotion to
13
(...continued)
debtor’s avoidable transfers in bankruptcy proceeding); South Ridge Baptist
Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1206–09 (6th Cir. 1990)
(workers compensation premiums); Elane Photography, LLC v. Willock, 309
P.3d 53, 72–75 (N.M. 2013) (state human rights ordinance), pet’n for cert. filed
(U.S. Nov. 8, 2013); Koolau Baptist Church v. Dep’t of Labor & Indus. Relations,
718 P.2d 267, 271–73 (Hi. 1986) (unemployment insurance taxes).
132 Nos. 12-3841 & 13-1077
its religious beliefs in every aspect of life. Where such beliefs
clash with important state interests in the welfare of others,
however, accommodation is not constitutionally mandated.”);
Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67,
93 (Cal. 2004) (“Strongly enhancing the state’s interest is the
circumstance that any exemption from the [state statute
requiring employers to include contraceptive coverage in
workplace health insurance plans] sacrifices the affected
women’s interest in receiving equitable treatment with respect
to health benefits. We are unaware of any decision in which
this court or the United States Supreme Court has exempted a
religious objector from the operation of a neutral, generally
applicable law despite the recognition that the requested
exemption would detrimentally affect the rights of third
parties.”); Perry Dane, Note, Religious Exemptions Under the Free
Exercise Clause: A Model of Competing Authorities, 90 YALE L. J.
350, 368 (1980) (injury to third parties may counsel against
religious exemption). Whatever work-around might be
possible to bestow that right through alternate means, there is
no certainty that the government can or will implement the
work-around or that it will do so on any given timeline, and in
the meantime the corporate owner has vindicated its asserted
rights at the expense of others. The statutory mandate at issue
in this case implicates not only a constitutionally protected
freedom to use contraception, but a range of other interests
related to the health of women and their children and the
ability of women to enter and remain in the workplace. It is not
just the women who work for Korte & Luitjohan Contractors
and Grote Industries who have those interests; the wives and
daughters of employees who have family health insurance
Nos. 12-3841 & 13-1077 133
coverage through those firms are also implicated. Whether the
employees and family members who are affected by this
court’s ruling will be able to access contraception in the
absence of a government work-around cannot be known; what
is virtually certain is that they will have to pay 100 percent of
the cost of contraception absent access to alternative coverage
through a spouse’s insurance plan, for example. To the extent
that some employees will be unable to pay the out-of-pocket
costs of contraception, the plaintiffs, based on their own
religious beliefs, will have effectively narrowed the scope of
healthcare that is available to those employees. This is the very
scenario about which the Supreme Court has signaled concern;
and given that the plaintiffs’ own free exercise rights are at
most modestly burdened by the contraceptive mandate, we
tread on dangerous territory by exempting the plaintiffs from
the statutory mandate.
I mentioned at the outset that the court’s decision struck me
as reminiscent of the Lochner era; let me explain why I think
this is so. Lochner and its progeny struck down a host of wage,
hour, and other workplace regulations on the theory that they
impermissibility intruded on the rights of contract, property,
and to engage in a lawful, private business as protected by the
due process clauses of the Fifth and Fourteenth Amendments.
See, e.g., Lochner v. New York, 198 U.S. 45, 57, 25 S. Ct. 539, 543
(1905) (state statute specifying that bakery employees could
work no more than 10 hours per day or 60 hours per week
impermissibly intruded on employer’s and employee’s
freedom of contract: “There is no reasonable ground for
interfering with the liberty of person or the right of free
contract, by determining the hours of labor, in the occupation
134 Nos. 12-3841 & 13-1077
of a baker.”); Coppage v. Kansas, 236 U.S. 1, 11–14, 35 S. Ct. 240,
242–43 (1915) (state statute proscribing “yellow dog” contracts
that forbade employees from joining a union interfered with
rights of contract and private property); Adkins v. Children’s
Hosp. of D.C., 261 U.S. 525, 557–59, 43 S. Ct. 394, 401–02 (1923)
(federal statute establishing minimum wage standards for
women and children working in District of Columbia inter-
fered with freedom of contract by artificially restricting
employer’s side of wage negotiation); New State Ice Co. v.
Liebmann, 285 U.S. 262, 278, 52 S. Ct. 371, 374 (1932) (state
statute requiring a license to engage in manufacture, distribu-
tion, or sale of ice interfered with common right to engage in
lawful private business).
One flaw of the Lochner jurisprudence is that while the
Court purported to protect the constitutional rights of workers
as well as employers, it blinded itself to the reality that
employees frequently did not possess bargaining power
enabling them to pursue and protect their own liberty interests,
so that by invalidating regulations meant to protect workers,
the Court was in fact depriving them of their contractual and
other rights; substantive due process was being wielded as a
club to defeat important workplace protections. When the
Court signaled an end to the Lochner era with its decision in
West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578 (1937),
to uphold a state statute establishing a minimum wage for
women and minors—and thus to overrule its decision in
Adkins—it stressed that the concept of liberty enshrined in the
due process clause also includes the right of government to
enact legislation aimed at promoting the health and welfare of
the public, including protection for the rights of employees:
Nos. 12-3841 & 13-1077 135
The principle which must control our decision is not
in doubt. The constitutional provision invoked is the
due process clause of the Fourteen Amendment
governing the states, as the due process clause
invoked in the Adkins Case governed Congress. In
each case the violation alleged by those attacking
minimum wage regulation for women is deprivation
of freedom of contract. What is this freedom? The
Constitution does not speak of freedom of contract.
It speaks of liberty and prohibits the deprivation of
liberty without due process of law. In prohibiting
that deprivation, the Constitution does not recognize
an absolute and uncontrollable liberty. Liberty in
each of its phases has a history and connotation. But
the liberty safeguarded is liberty in a social organi-
zation which requires the protection of law against
the evils which menace the health, safety, morals,
and welfare of the people. Liberty under the Consti-
tution is thus necessarily subject to the restraints of
due process, and regulation which is reasonable in
relation to its subject and is adopted in the interest
of the community is due process.
Id. at 391, 57 S.Ct. at 581–82. In concluding that the minimum-
wage law fell within this broad police power, and did not
impermissibly intrude upon the rights of employers, the Court
quoted approvingly from Justice Holmes’ dissent in Adkins:
This statute does not compel anybody to pay any-
thing. It simply forbids employment at rates below
those fixed as the minimum requirement of health
and right living. It is safe to assume that women will
136 Nos. 12-3841 & 13-1077
not be employed at even the lowest wages allowed
unless they earn them, or unless the employer’s
business can sustain the burden. In short the law in
its character and operation is like hundreds of so-
called police laws that have been up-held.
Id. at 396–97, 57 S. Ct. at 584 (quoting Adkins, 261 U.S. at 570, 43
S. Ct. at 406 (Holmes, J., dissenting).
What the plaintiffs’ claim has in common with the Lochner
jurisprudence is that it elevates the daily affairs of a secular,
for-profit corporation to constitutional status, treating the
business as the embodiment of its owners’ religious principles,
such that a burden on the corporation is conceived of as a
burden on the religious rights of the corporate owners. In this
way, a statutory mandate that is amply justified by the govern-
ment’s police power, which falls solely on the corporation, and
which requires the owners to do absolutely nothing in their
personal lives that is inconsistent with their religious beliefs, is
nonetheless deemed to be an impermissible intrusion upon the
exercise of their constitutionally protected religious beliefs. The
burden, so conceived, is then used as the springboard for
overruling a neutral, generally-applicable statutory provision
that Congress has deemed necessary to protect the rights of
others.
When the Kortes and the Grotes chose to enter the business
world, they did not surrender their free exercise rights, but
they did assume responsibility for the regulatory obligations
imposed on all like businesses, including statutory obligations
to their employees. See Lee, 455 U.S. at 261, 102 S. Ct. at 1057;
Gilardi, 2013 WL 5854246, at *34 (Edwards, J., concurring in
Nos. 12-3841 & 13-1077 137
part & dissenting in part); cf. Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 259–61, 85 S. Ct. 348, 358–60 (1964)
(rejecting contention that federal prohibition of racial discrimi-
nation in public accommodations violated motel’s right to
choose its customers and operate business as it wished, given
well established powers of both Congress and the States to
regulate inter- and intra-state commerce). They chose to form
corporations that legally separated them from the assets and
obligations of their businesses. See Cedric Kushner Promotions,
Ltd., supra, 533 U.S. at 163, 121 S. Ct. at 2091. Like any secular
employer in a religiously pluralistic nation, the Kortes and the
Grotes must realize that their companies employ individuals
who do not share their own religious beliefs and who may
choose to use their wages and benefits in ways that are
offensive to those beliefs. As a matter of both common sense
and legal reasoning, no one would plausibly treat those choices
as the Kortes’ and Grotes’ own decisions, or as a meaningful
burden on the exercise of their religious rights. What the ACA
imposes on employers is an obligation to provide employee
health insurance that covers a standard, comprehensive set of
benefits. How an individual employee uses those benefits is up
to her; she not only earns the insurance through her labor but
typically contributes a significant portion of her wages to pay
for it. Her choices will be guided by, among other things, her
own religious principles. Although an employer, in conveying
the benefits she has earned, no doubt facilitates those choices,
her freedom to make choices that are inconsistent with the
employer’s own religious beliefs imposes nothing like a
138 Nos. 12-3841 & 13-1077
substantial burden on the employer’s practice of religion.14
Only by extending the scope of an employer’s exercise of
religion far beyond his own belief, worship, and conduct to the
conduct of his employees, can we conceive of the insurance
benefits provided to employees as an undue burden on the free
exercise rights of the company owners. This is, in my view, far
beyond what Congress had in mind when it enacted RFRA.
6.
If it were necessary to reach the second prong of the RFRA
inquiry, I would find that the contraception mandate is
supported by a compelling governmental interest. The court
chides the government for not making more of a case in this
respect. But, to my mind, the nature and the weight of the
interests supporting the mandate are obvious. In this regard,
I view this case as materially no different from Lee, in which
the court found the government’s interest in a national social
security system sufficiently compelling to warrant infringe-
ment on an Amish employer’s religious interests by requiring
him to pay into the system.
14
As Judge Edwards has pointed out:
No Free Exercise decision issued by the Supreme Court has
recognized a substantial burden on a plaintiff’s religious exercise
where the plaintiff is not himself required to take or forgo action
that violates his religious beliefs, but is merely required to take
action that might enable other people to do things that are at odds
with the plaintiff’s religious beliefs.
2013 WL 5854246, at *29 (emphasis in original).
Nos. 12-3841 & 13-1077 139
The government has an obvious and compelling interest in
broadening Americans’ access to health insurance. That all
Americans have a keen interest in access to medical goods and
services is beyond question. As the costs of both health care
and health insurance have risen substantially in recent decades
and the number of workplace insurance plans has declined, the
need for health insurance reform has become more urgent. In
2010, the year that the ACA was enacted, some 50 million
Americans lacked health insurance—roughly 18 percent of the
non-elderly population. See Dep’t of Health & Human Servs.,
Office of the Ass’t Sec’y for Planning & Evaluation, ASPE Issue
Brief - Overview of the Uninsured in the United States: A Summary
of the 2011 Current Population Survey, available at http://aspe.
hhs.gov/health/reports/2011/cpshealthins2011/ib.shtml (last
visited Nov. 7, 2013). Obtaining insurance in the individual
market was expensive: In 2010, average monthly per-person
premiums in the individual market for health insurance ranged
from a low of $136 in Alabama to $437 in Massachusetts, for a
nationwide average of $215 (more than $2,500 per year). Henry
J. Kaiser Family Foundation, State Health Facts, Average Monthly
Per Person Premiums in the Individual Market, available at
http://http://kff.org/other/state-indicator/
individual-premiums/ (last visited Nov. 7, 2013). Needless to
say, many individuals and families—those who could afford
the premiums—spent far more. At the same time, medical
debtors—whether uninsured or underinsured—were becom-
ing a much larger share of those filing for bankruptcy. See
David U. Himmelstein, et al., Medical Bankruptcy in the United
States, 2007: Results of a National Study, 122 AM. J. MED. (No. 8)
741 (Aug. 2009). Uncompensated hospital care (including both
140 Nos. 12-3841 & 13-1077
charity care and services for which hospitals expected compen-
sation but did not get it) had increased tenfold over the prior
three decades, from $3.9 billion in 1980, to $39.3 billion in 2010.
American Hospital Association, Uncompensated Hospital Care
Cost Fact Sheet at 3 (January 2013), available at
h t t p : / / w w w. a h a . o r g / c o n t e n t / 1 3 / 1 - 2 0 1 3 -
uncompensated-care-fs.pdf (last visited Nov. 7, 2013).
The ACA’s employer mandate, coupled with an individual
mandate applicable to all persons not covered by employer-
sponsored health plans and otherwise not eligible for Medicare
or Medicaid, was a logical, although certainly not the only,
means of moving the country toward universal health insur-
ance. It builds upon the American tradition of employer-
sponsored health insurance that began in the early 20th
century. See, e.g., David Blumenthal, Employer-Sponsored Health
Ins. in the U.S.—Origins and Implications, 355 NEW ENGLAND J.
MED. No. 1, 82 (July 6, 2006). It takes advantage of risk-spread-
ing, economies of scale, quality control, and other features of
employer-procured insurance. And, although this was the
work of a Democratic President and Congress, it had the
advantage of having been first proposed by a Republican
President—Nixon—nearly 40 years ago. See Special Message
from President Richard M. Nixon to the Congress Proposing a
Comprehensive Health Insurance Plan (Feb. 6, 1974), available
at http://www.presidency.ucsb.edu/ws/index.php?pid=4337
(last visited Nov. 7, 2013). My intention here is neither to
validate nor endorse the ACA as policy—that is not within my
purview—but merely to recognize that it embodies rational
choices and that the road leading to those choices has been a
long and difficult one.
Nos. 12-3841 & 13-1077 141
Compelling government interests in both preventive health
care and gender equality support the inclusion of contracep-
tives within the mandated coverage that insurance
plans—including employer-sponsored plans—must provide
without copayment by the insured. As the court has noted,
included with the standard coverage required of all non-
grandfathered health plans are a series of preventive services
that must be provided to all adults without copayment,
including immunizations for tetatanus, meningitis, measles,
influenza, hepatitis B, and other communicable diseases;
screening for high cholesterol, diabetes, HIV infection, high
blood pressure, colorectal cancer, and other potentially life-
threatening conditions; and both screening and counseling for
alcohol abuse, tobacco use, and obesity. See
http://www.healthcare.gov/what-are-my-preventive-care-
benefits (last visited Nov. 7, 2013). The rationale behind
requiring coverage of such services without copayment is
obvious: these are services which either prevent illness
altogether or facilitate detection at an earlier stage when it is
more amenable to treatment, thereby reducing the direct and
indirect costs of illness otherwise borne by the insured, his
family, his employer, his insurer, medical providers, and the
government. The Women’s Health Amendment to the ACA,
spearheaded by U.S. Senator Barbara Mikulski, expanded the
range of requisite preventive care to include a separate set of
preventive services for women. In proposing the amendment,
Senator Mikulski noted that many women forego preventive
screenings for the conditions that statistically are most likely to
result in their death—breast, cervical, colorectal, ovarian and
lung cancer, and heart and vascular disease—either because
142 Nos. 12-3841 & 13-1077
they lack insurance, the services are not covered by their
insurance plans, or because the large copayments required by
their insurance companies for these screenings are beyond
their financial means. “Women of childbearing age incur 68
percent more out of pocket health care costs than men,” she
pointed out. “My amendment guarantees access to critical
preventive screening and care for women to combat their
number one killers and provides it at no cost. This amendment
eliminates a big barrier of high copayments.” Press release:
Mikulski Puts Women First in Health Care Debate (November 30,
2009), available at http://www.mikulski.senate.gov/media/
pressrelease/11-30-2009-2.cfm (last visited Nov. 7, 2013); see also
Jessica Arons & Lindsay Rosenthal, Center for American
Progress, Facts About the Health Insurance Compensation Gap
(June 2012) (“Even with employer-based coverage, women
have higher out-of-pocket medical costs than men. Overall,
women of reproductive age spend 68 percent more out of
pocket than men on health care, in part because their reproduc-
tive health care needs require more frequent health care visits
and are not always adequately covered by their insurance.
Among women insured by employer-based plans, oral
contraceptives alone account for one-third of their total
out-of-pocket health care spending.”), available at
http://www.americanprogress.org/issues/healthcare/news/
2012/06/01/11666/facts-about-the-health-insurance-compensa
tion-gap/ (last visited Nov. 7, 2013). As the court has noted,
with the passage of the Women’s Health Amendment, a panel
of experts convened by the Institute of Medicine determined
based on evidence-based criteria what preventive services
were necessary to promote and protect women’s health and
Nos. 12-3841 & 13-1077 143
therefore ought to be included—at no additional cost to the
insured individual—in the standard health coverage required
of all non-grandfathered insurance plans. Covered services
now include, in addition to contraception: breast cancer
mammography, genetic screening, and chemoprevention
counseling; screening for a variety of sexually-transmitted
diseases including chlamydia, gonorrhea, syphilis, HIV, and
human papillomavirus; and screenings for hepatitis B, cervical
cancer, gestational diabetes, osteoporosis, and urinary tract
infections. See http://www.healthcare.gov/what-are-my-
preventive-care-benefits (last visited Nov. 7, 2013); see also U.S.
Dep’t of Health & Human Servs., Health Resources & Servs.
Admin., Women’s Preventive Services Guidelines, available at
http://www.hrsa. gov/womensguidelines/ (last visited Nov. 7,
2013).
It should come as no surprise that contraceptive care was
included in the set of preventive services that the Institute of
Medicine panel deemed essential to women’s health. Ninety-
nine percent of American women aged 15 to 44 who have
engaged in sex with men have used at least one form of birth
control. Institute of Medicine, Committee on Preventive
Services for Women, Clinical Preventive Services for Women:
Closing the Gaps, 103 (2011), available at http://www.
nap.edu/catalog.php?record_id=13181; Guttmacher Institute,
Fact Sheet: Contraceptive Use in the United States, at 1 (Aug.
2013), available at http://www.guttmacher.org/pubs/
fb_contr_usc.pdf (last visited Nov. 7, 2013); William D. Mosher
& Jo Jones, Centers for Disease Control, Nat’l. Ctr. for Health
Statistics, Use of Contraception in the United States: 1928-2008, 5,
15, & Table 1 (Aug. 2010), available at http://www.cdc.gov/
144 Nos. 12-3841 & 13-1077
nchs/data/series/sr_23/sr23_029.pdf (last visited Nov. 7, 2013.
A woman’s ability to control whether and when she will
become pregnant has highly significant impacts on her health,
her child’s health, and the economic well-being of herself and
her family. Unintended pregnancies pose risks to both mother
and fetus in that a woman, neither planning to be pregnant nor
realizing that she is, may both delay prenatal care and continue
practices (including smoking and drinking) that endanger the
health of the developing fetus. Id. at 103. Pregnancy is contrain-
dicated altogether for women with certain health conditions.
Id. at 103–04. Intervals between pregnancies also matter, as
pregnancies commencing less than eighteen months after a
prior delivery pose higher risks of pre-term births and low
birth weight. Id. at 103. An unintended pregnancy may also put
financial strain on the woman and her family, to the extent that
the birth will require her to take time off from work, may cause
her to quit work altogether if she does not have or cannot
afford to pay for alternate childcare, and adds substantial,
unplanned-for expenses to the family budget. Unintended
pregnancies resulting in birth also impose large costs on the
public fisc: In 2008, for example, 65 percent of births resulting
from unintended pregnancies were paid for by public insur-
ance programs (primarily Medicaid) and resulted in total
estimated costs of $12.5 billion. Guttmacher Institute, Fact
Sheet: Facts on Unintended Pregnancy in the United States (Oct.
2013), available at http://www.guttmacher.org/pubs/
FB-Unintended-Pregnancy-US.html (last visited Nov. 7, 2013).
Finally, unintended and unwanted pregnancies naturally
account for the lion’s share of induced abortions. Currently,
nearly one-half (49 percent) of all pregnancies in the United
Nos. 12-3841 & 13-1077 145
States are unintended, and roughly 40 percent of those preg-
nancies (22 percent of all pregnancies) end in abortion, result-
ing in more than 1.2 million abortions annually as of 2008.
Guttmacher Institute, In Brief: Facts on Induced Abortion in the
United States (Oct. 2013), available at http://www.
guttmacher.org/pubs/fb_induced_abortion.html (last visited
Nov. 7, 2013). Abortions themselves have economic costs
(roughly 20 percent are paid for by Medicaid, for example, see
id.), and, as important, because many Americans oppose
abortions on moral grounds, the government has a legitimate
interest in reducing the abortion rate. See Planned Parenthood of
Se. Penn. v. Casey, supra, 505 U.S. at 883, 112 S. Ct. at 2824 (state
may express preference for childbirth over abortion); Michael
M. v. Superior Ct. of Sonoma Cnty., 450 U.S. 464, 470–71 & n.5,
101 S. Ct. 1200, 1205 & n.5 (1981) (noting that statutory rape
law was justified by state’s “strong interest” in preventing out-
of-wedlock teenage pregnancies and thereby, inter alia,
reducing abortion rate); Choose Life Illinois, Inc. v. White, 547
F.3d 853, 868 (7th Cir. 2008) (Manion, J., concurring); but see
Gilardi, 2013 WL 5854246, at *12 (although government’s
asserted interests in abortion cases have been described as
“legitimate and substantial,” they have never been described
as compelling). Ready access to contraception thus not only
maximizes the ability of women to become pregnant only if
and when they and their partners are prepared to shoulder the
responsibilities of parenthood, but could well lower the rate of
abortion. See Institute of Medicine, Clinical Preventive Services
for Women, at 109 (eliminating or reducing out-of-pocket costs
of contraception makes it more likely women will use more
effective methods of contraception) (citing Debbie
146 Nos. 12-3841 & 13-1077
Postlethwaite, et al., A comparison of contraceptive procurement
pre-and post-benefit changes, CONTRACEPTION 76(5): 360–365
(2007)); Jeffrey F. Peipert, et al., Preventing Unintended Pregnan-
cies By Providing No-Cost Contraception, 120 Obstetrics &
Gynecology 1291 (Oct. 2012); Amy Deschner & Susan A.
Cohen, Contraceptive Use Is Key to Reducing Abortion Worldwide,
6 GUTTMACHER REPORT ON PUBLIC POLICY No. 4 (Oct. 2003),
available at http://www.guttmacher.org/pubs/tgr/06/4/
gr060407.html (last visited Nov. 7, 2013); John Bongaarts &
Charles F. Westoff, The Potential Role of Contraception in
Reducing Abortion, 31 STUDIES IN FAMILY PLANNING 193 (Sept.
2000).
The right to use contraception is, of course, constitutionally
protected. See Griswold v. Connecticut, 381 U.S. 479, 485–86, 85
S. Ct. 1678, 1682 (1965) (state statute forbidding use of contra-
ceptives impermissibly intrudes on right of marital privacy);
Eisenstadt v. Baird, 405 U.S. 438, 453–55, 92 S. Ct. 1029, 1038–39
(1972) (state statute forbidding distribution of contraceptives
to unmarried persons violates equal protection clause of
Fourteenth Amendment). As the Court put it in Eisenstadt, “If
the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affect-
ing a person as the decision whether to bear or beget a child.”
Id. at 453, 92 S. Ct. at 1038.
I am also convinced that making contraceptive coverage
part of the standardized insurance that non-grandfathered
employers must provide to their employees is the least
restrictive means of furthering these compelling interests. I
have my doubts about the feasibility of creating, let alone
Nos. 12-3841 & 13-1077 147
enacting, a publicly-funded contraception plan, or establishing
a system of tax credits to contraceptive manufacturers or the
women who use contraception, given that it has taken more
than 60 years to enact a health insurance reform effort on the
scale of the Affordable Care Act, and given the controversies
that inevitably surround the reproductive rights of women. At
the very least, it is unlikely that any such plan will be estab-
lished in the near future. Putting that aside, we must consider
that the entire point of the Women’s Health Amendment to the
ACA was to redress a history of gender-based inequalities in
healthcare and health insurance. Carving out from the stan-
dard insurance coverage mandated by the ACA a type of
healthcare that a panel of experts has determined to be vital to
the health needs of women, and saying that it must be pro-
vided for separately, reinforces the very disparities that
motivated the Amendment. Additional transaction costs surely
will attend the creation of a separate plan devoted to contra-
ception, be it a public option or a set of tax incentives, and the
segregation of this form of healthcare from standard insurance
coverage will stigmatize both these services and the employees
who wish to access them.15 This could hardly be more inconsis-
tent with the intent underlying the Women’s Health Amend-
ment. Cf. Romer v. Evans, supra, 517 U.S. at 630–31, 116 S. Ct. at
15
A woman would either have to enroll in a government program
dedicated to providing contraceptive insurance coverage, establish a
relationship with a government-subsidized contraceptive manufacturer, or
claim credits for the purchase of contraception on her income tax return.
Each alternative, aside from imposing extra burdens on her to obtain
contraceptive coverage, singles her out as a sexually-active woman who
wishes to use contraception.
148 Nos. 12-3841 & 13-1077
1626–27 (observing that state constitutional provision foreclos-
ing to gays and lesbians the protections of nondiscrimination
laws imposes a unique disability on that class of individuals);
United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (reasoning
that denying federal recognition to same-sex marriages
authorized by state law “impose[s] a disadvantage, a separate
status, and so a stigma on all who enter same-sex marriages
made lawful by the unquestioned authority of the States”).
Nor can we view the contraception provisions of the ACA
in isolation. As I have now pointed out several times, the
contraception mandate is merely one requirement in a compre-
hensive set of requirements that the statute imposes on all
health plans, and as I have discussed, there are any number of
medical services that health plans cover and medical choices
that an insured might make to which a particular employer
might object on religious grounds. Logically, the court’s
decision to relieve Korte & Luitjohan Contractors and Grote
Industries of the contraception mandate cannot be limited to
contraception alone. The relevant question, then, is not
whether the government feasibly may ensure access to
contraceptive care through other means, but whether it may
feasibly ensure access to all types of care to which employers
might object on religious grounds. The answer to that is
obvious: it is not feasible to expect the government to establish
a public insurance option that picks up responsibility for the
crazy-quilt of individual services that any individual employer
might find incompatible with his individual religious beliefs.
The Supreme Court remarked in Lee that “[r]eligious beliefs
can be accommodated, but there is a point at which accommo-
dation would ‘radically restrict the operational latitude of the
Nos. 12-3841 & 13-1077 149
legislature.’” 455 U.S. at 259, 102 S. Ct. at 1056 (quoting
Braunfeld, 366 U.S. at 606, 81 S. Ct. at 1147) (additional citations
omitted). In a pluralistic society with many religions and even
more variants of religious beliefs, it would be impossible to
move toward a system of universal healthcare that relies
substantially on employer-sponsored health insurance while
permitting corporate owners with objections to particular types
of health services or specific decisions about how to use those
services to exclude them from workplace health plans. Even if
the government chose instead to pursue universal healthcare
through the means of an entirely publicly-funded, single-payer
system of health insurance, corporate owners as taxpayers
would still be facilitating contraception and other healthcare
services to which they object. The decision in Lee makes clear
that the government would not be required to accommodate
religious-based objections where the program in question is
funded through general revenues. Indeed, the Kortes’ counsel
conceded at oral argument that even an employer tax dedi-
cated to a public program underwriting contraception might
be upheld under Lee’s analysis. Taxpayer funding facilitates
contraception just as much as any other means of financing.
Granted, by making the government the middleman, taxpayer
financing separates a corporate owner from his employee’s use
of contraception. But as I have already pointed out, in the
context of employer-financing of insurance, the corporate form,
the health plan’s separate identity, third-party administration
of the health plan, and the private choices of employees and
their physicians, similarly place corporate owners at a remove
from an employee’s decision to use contraception. Insisting on
an exception in one setting but not the other makes no sense,
150 Nos. 12-3841 & 13-1077
when in both cases corporate owners are lending support to a
type of healthcare they find objectionable, but in neither case
are they in any meaningful sense a party to an individual’s
decision to use that service.
The exemptions already provided for in the ACA neither
undermine the compelling nature of the government’s interests
in broadening Americans’ access to healthcare and ensuring
that women have comprehensive healthcare nor do they make
religious-based exemptions any more reasonable or feasible.
First, given the financial burdens associated with workplace
health plans, exempting employers with fewer than 50 full-
time employees from the obligation to provide insurance is an
entirely practical, logical, and justifiable accommodation to the
financial needs of small employers, particularly in the first
phase of a national effort to expand access to healthcare.
Individuals who work for those employers, like part-time
employees, self-employed individuals, and unemployed
individuals are steered to the insurance exchanges established
under the ACA, where the government offers subsidies to
those who cannot shoulder the full cost of insurance on their
own. Likewise, grandfathering existing workplace health plans
follows a time-honored and common-sensical path in expedit-
ing the implementation of a new, complex, and potentially
burdensome regulation. Employees participating in those
plans by definition already have health insurance, so the
accommodation to employers represented by this exemption
does not unduly burden employees nor undermine the central
goal of the legislation. Existing plans will lose the benefit of
this exemption as they make major changes to their health
plans that, inter alia, reduce benefits or increase costs to
Nos. 12-3841 & 13-1077 151
employees. 45 C.F.R. § 147.140(g). There is no reason to think
this will take long for most employers,16 given the cost and
complexity of insuring a broad range of healthcare and the
market forces which prompt employers to make such revisions
on a regular basis; and, again, in the absence of such changes,
employees remain covered by the grandfathered plans, so the
goal of access to health insurance is served. Odds are, many of
these grandfathered plans already cover contraceptive care to
some degree. See Institute of Medicine, Clinical Preventive
Services for Women, 49, 108–09 (as of 2010, 85% of large and 62%
of small health plans covered contraception) (citing Gary
Claxton, et al., Kaiser Family Found., ANNUAL SURVEY OF
EMPLOYER HEALTH BENEFITS, 186 (2010), available at http://
kaiser familyfoundation.files.wordpress.com/2013/04/8085.pdf
(last visited Nov. 7, 2013)); see also Guttmacher Institute, STATE
POLICIES IN BRIEF, Insurance Coverage of Contraceptives (survey-
ing state laws which require insurers to cover contraceptives),
available at http://www.guttmacher.org/statecenter/spibs/
spib_ICC.pdf (last visited Nov. 7, 2013). Finally, the fact that
the ACA contains an exemption for religious
employers—which is the sole permanent exemption from the
contraception mandate, see Gilardi, 2013 WL 5854246, at *33
(Edwards, J., concurring in part & dissenting in part)—by no
means demonstrates that an exemption is required for any
16
The government’s mid-range estimate is that “66 percent of small
employer plans and 45 percent of large employer plans will relinquish their
grandfather status by the end of 2013.” Interim Final Rules for Group
Health Plans and Health Insurance Coverage Relating to Status as a
Grandfathered Health Plan Under the Patient Protection and Affordable
Care Act, 75 Fed. Reg. 34,538, at 34,552 (June 17, 2010).
152 Nos. 12-3841 & 13-1077
employer with a potential religious objection to contraception
or any other type of healthcare. That type of exemption is a
feature common to any number of federal statutes, including
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1(a),
and the Americans with Disabilities Act of 1990, 42 U.S.C.
§§ 12113(d), 12187; see Gilardi, 2013 WL 5854246, at *33–*34
(Edwards, J., concurring in part & dissenting in part). And
there is a demonstrable difference between a not-for-profit
employer whose mission is expressly defined by religious
goals and a secular corporation whose business is commerce
for profit.
7.
Speaking for the Court in Lyng v. Nw. Indian Cemetery
Protective Ass’n, Justice O’Connor had this to say about the
limited reach of the free exercise clause:
However much we might wish that it were other-
wise, government simply could not operate if it
were required to satisfy every citizen’s religious
needs and desires. A broad range of government
activities—from social welfare programs to foreign
aid to conservation projects—will always be consid-
ered essential to the spiritual well-being of some
citizens, often on the basis of sincerely held religious
beliefs. Others will find the same activities deeply
offensive, and perhaps incompatible with their own
search for spiritual fulfillment and with the tenets of
their religion. The First Amendment must apply to
all citizens alike, and it can give to none of them a
veto over public programs that do not prohibit the
Nos. 12-3841 & 13-1077 153
free exercise of religion. The Constitution does not,
and courts cannot, offer to reconcile the various
competing demands on government, many of them
rooted in sincere religious belief, that inevitably
arise in so diverse a society as ours. That task, to the
extent it is feasible, is for the legislatures and other
institutions.
485 U.S. at 452, 108 S. Ct. at 1327 (citation omitted).
What the plaintiffs seek accommodation for here is a
demand on their conduct, rather than their religious beliefs;
and the Court has always recognized that “the freedom to act,
even where the action is in accord with one’s religious convic-
tions, is not totally free from legislative restrictions.” Braunfeld,
366 U.S. at 603, 81 S. Ct. at 1146 (citing Cantwell v. Connecticut,
310 U.S. 296, 303–04, 306, 60 S. Ct. 900, 903–04 (1940)); see also,
e.g., Employ. Div. v. Smith, supra, 494 U.S. at 878–80, 110 S. Ct. at
1600; Bowen v. Roy, supra, 476 U.S. at 699, 106 S. Ct. at 2152;
Wisconsin v. Yoder, supra, 406 U.S. at 219–20, 92 S. Ct. at 1535;
Baird v. State Bar of Ariz., 401 U.S. 1, 5–6, 91 S. Ct. 702, 705–06
(1971); Sch. Dist. of Abington Twp., Pennsylvania v. Schempp, 374
U.S. 203, 217–18, 83 S. Ct. 1560, 1569 (1963); Sherbert v. Verner,
supra, 374 U.S. at 402–03, 83 S. Ct. at 1793; United States v.
Ballard, 322 U.S. 78, 86, 64 S. Ct. 882, 886 (1944). Furthermore,
the conduct for which the Kortes and the Grotes seek an
exemption is their conduct as corporate owners in the commer-
cial world; moreover, it is also conduct that implicates the
rights of third parties—their employees. The reach of the free
exercise clause in this setting is quite limited, whereas the
government’s interests in pursuing the uniform application of
154 Nos. 12-3841 & 13-1077
a religiously-neutral statute promoting the rights of employees
is quite strong.
The court’s holding granting the Kortes and the Grotes,
along with their two secular corporations, a religiously-based
exemption from an insurance mandate represents a dramatic
turn in free exercise jurisprudence for all of the reasons I have
discussed. It bestows a highly personal right to religious
exercise on two secular, for-profit corporations that have no
facility of thought, conscience, or belief. It deems the religious
rights of the plaintiffs burdened by the contraceptive mandate
without consideration of the indirect and minimal intrusion on
their exercise of religion. And it disregards the extent to which
the exemption from the mandate burdens the rights of the
plaintiffs’ employees. Finally, it establishes a precedent which
invites free-exercise challenges to a host of federal laws by
secular corporations which, in reality, have no religious beliefs
of their own and cannot exercise religion.
For all of these reasons I have set forth here, in my prior
dissents, Korte v. Sebelius, 2012 WL 6757353, at *5–*6 (7th Cir.
Dec. 28, 2012), Grote v. Sebelius, 708 F.3d at 855–867, and in the
well-reasoned opinions of Judge Reagan, Korte v. U.S. Dep’t of
Health & Human Servs., supra, 912 F. Supp. 2d 735, and Judge
Barker, Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D.
Ind. 2012), below, I would affirm the district courts’ decisions
to deny the plaintiffs’ requests for preliminary injunctive relief.
I respectfully dissent.